*1 judgment of we affirm the Accordingly, court.
the district BELMONTES, Jr.,
Fernando
Petitioner-Appellant,
v. AYERS, Jr., for the
Robert L. Warden Quen- Prison at
California State San
tin, Respondent-Appellee.
No. 01-99018. Appeals, States Court of
United
Ninth Circuit. 15, May 2007.
Argued and Submitted
Decided June *2 petition filed a
ceedings, Belmontes
court,
district
corpus
of habeas
writ
his conviction and
seeking to set
both
aside
*3
2000,
district court found
In
sentence.
during the
representation
that counsel’s
deficient,
that his
but
phase was
penalty
prejudice
not
did
performance
deficient
2001, the court denied the
In
Belmontes.
entirety.
appeal
in its
petition
CA,
Valley,
and
Multhaup, Mill
Eric
of
2003,
the denial
we affirmed
ed.
In
CA,
Sacramento,
Wing,
H.
Christopher
guilt-
Belmontes’s
respect
with
relief
petitioner-appellant.
claims,
reversed the denial
but
phase
that the
ground
on the
relief
penalty-phase
Jr., Attorney
Brown,
Gen-
G.
Edmund
as to
instructed
improperly
California, Dane R.
the State of
eral for
required
it was
con
General,
Attorney
Gillette,
Assistant
Chief
Woodford, 350 F.3d
v.
sider. Belmontes
Farrell,
At-
Assistant
P.
Senior
Michael
I”).
Cir.2003) (“Belmontes
(9th
In
861
Christoffersen,
General,
L.
Eric
torney
judg
2005,
vacated our
Supreme
Court
General,
Mark A.
Attorney
Deputy
for reconsideration
ment and remanded
General,
Attorney
Sacra-
Johnson, Deputy
133, 125
Payton,
v.
544 U.S.
light of Brown
CA,
mento,
respondent-appellee.
for the
(2005).
1432,
L.Ed.2d 334
161
S.Ct.
Belmontes,
945,
544 U.S.
125
v.
Brown
(2005).
1697,
until quanti- when stole a AND I. FACTUAL PROCEDURAL ty of “black amphetamine beauties”— BACKGROUND pills Upon discovering McConnell. —from theft, the Vasquez McConnell threw and case, prior In our two opinions this we out group friends of the house. The history the summarized facts and that re subsequently discussed their dislike of to lated the issues before us. See Bel McConnell. II, 1102-11; montes F.3d Bel I, montes 350 F.3d at This 869-78 is the police investigation of the individu- time that we have first addressed the als who had been at the present party led penalty-phase claim of ineffective interrogate assis Vasquez officers to and Thus, again tance of counsel. we recite Bolanos. eventually Bolanos admitted case, history and facts of but this that he had been involved the events with an emphasis death, time on those facts that that led to McConnell’s and identi- relevant are to the ineffective assistance of fied Vasquez Belmontes and as his co- claim, Belmontes, including counsel facts were adventurers. who was nine- during post-conviction pro time, determined teen at the not been at party, ceedings and appear did not our earlier but had visited over Bolanos the weekend opinions. of the murder. Bolanos, Belmontes, Vasquez and were Crime, Investigation,
A. The and Guilt charged degree each with first murder and Phase of Belmontes’s trial special However, circumstances. Bolanos the morning Sunday, arranged On March soon with prosecution a deal 1981, nineteen-year-old Steacy agreed testify against McConnell which he to Vas- telephoned parents quez her and told them exchange Belmontes people, guilty plea degree she was afraid because several in- burglary to second law, sentencing jury 1. Under State proceed- California in a chooses not institute further only death case has two ings choices: life respect penalty, death Bel- possibility parole without or death. See automatically montes will receive a sentence (West 1978). If, § Cal.Penal Code 190.2 fol- possibility parole. of life without the sentence, lowing capital a reversal of the thereafter, Vasquez charge. Belmontes immunity the murder At Vas- emerged hearing, Bolanos named from back door house preliminary quez’s components. carrying main assailant. After stereo as the Vasquez hearing, judge sprinkled the trial with blood and preliminary ghost.” like he had Ac- special charge circumstances “looked seen dismissed Bolanos, guilty cording to Belmontes stated that Vasquez, pled who to second against Belmontes, he had “take out That left who had to a witness” because murder. degree home, explained trial. McConnell had been proceeded alone Vasquez that when McConnell heard principal wit- was the State’s Bolanos up, away she from Bolanos drive looked morning that on the He testified ness. him and he seized the hit opportunity 15, he and Belmontes Sunday, March her with the bar. Vasquez’s hang residence to out. drove arrived, Vasquez finally after they was on Bolanos testified leav- When house, ing the three drove to Vasquez When McConnell’s phone with McConnell. Galt, nearby city they them that intend- up, he informed McCon- where hung *5 route, during not latter ed to the stereo. En Bel- would be home the fence nell car day. three were of montes threw the bar out of the win- part of the The short cash, they they to dow crossed a agreed burglarize bridge. and trio stereo, residence, eventually steal her sold the stereo for $100. McConnell’s Bolanos, According to and “clean house.” Holman, investigator Detective the lead Vasquez’s departed men house as the case, the on testified that Belmontes fur- kitchen, Belmontes through grabbed tape-recorded nished three statements an iron bar from the counter dumb-bell shortly after arrest. In the first state- for Vasquez’s rolling wife used tortil- ment, he denied involvement las. second, crime. In the he admitted the burglary that the hitting told the three men but denied McConnell. Bolanos third, McConnell, hitting car he admitted then drove to McConnell’s Bolanos’s once, hit only distance from the but that he her and parked short insisted Vasquez’s then He only where stated that he direction. stat- house Belmontes alone, foot, single ed blow approach the house on that the he delivered caused would down, in case fall point the metal bar he needed McConnell to at which he carrying entry. dropped searching further and began Bolanos testified the bar to force valuables, gather Vasquez that he house leaving that Belmontes said would alone place them near with Belmontes asserted that McConnell’svaluables McConnell. quick getaway, pay Vasquez’s to facilitate a did not attention to ac- the door period tions not Vasquez during that Bolanos and should wait for and did wit- bring twenty five minutes and then the car ness the fifteen fatal blows to about house. head that McConnell suffered. Hol- around McConnell’s drop man also testified that a small next testified that Bolanos Belmontes tongue blood found on the of one Bel- residence, and, af- walked McConnell’s “type 0”— montes’s shoes tested as minutes, five Bolanos ter about and Vas- type. McConnell’s blood up backed into quez drove McCon- Maduros, per- Dr. driveway. pathologist Bolanos heard who repeated nell’s McConnell, autopsy noises from formed the testified knocking banging coming hemorrhaging walked to the she died from cerebral Vasquez within house. Shortly twenty fifteen to to the front door to Belmontes. caused blows assist portion back left her skull. She had a what it was. He her showed the bar and separate right temple, contusion on her explained that he it because he was which aby single was caused blow of hitchhiking. lesser force that did not lacerate the skin. Belmontes further testified that five However, he informed the jury that this house, minutes after he entered the Bola- blow alone would not have caused death Vasquez pulled nos and into the driveway. and, first, if it had been the it likely would McConnell started walking toward the Injuries have caused unconsciousness. front door. Belmontes followed behind arms, hands, to McConnell’s legs, and feet her and placing bar up back a struggle. evidenced sleeve when Vasquez knocked on the door. Belmontes testified his own defense. Vasquez pushed open, door saw He insisted while he searching McConnell, and ordered Belmontes to “hit part back of the something house for her.” Belmontes Vasquez’s followed di- take, Vasquez struck the fatal blows. rective and struck McConnell once on the prior murder, stated that side of the head with the bar. She fell to he and gone Bolanos had over Vasquez’s the floor. dropped bar, ran house, and Vasquez that when mentioned bedroom, to the back searched that room home, McConnell they would not be kitchen, and the living returned to the decided to steal her Although they stereo. room. Upon to the front returning expected McConnell to away, plan be house, he Vasquez observed standing over
was that Belmontes go would to the door McConnell and the metal holding bar. He *6 home; case she turned they out to be did not see or hear hit Vasquez McConnell. thought that because of the confrontation He explain could not presence the of de- Vasquez between McConnell at and her fensive bruises and contusions on McCon- party days earlier, a few she would become hands, arms, nell’s and feet. angry suspicious and Vasquez if she saw Bolanos at her door. Although Belmontes was, The rest of testimony Belmontes’s had met McConnell a few times in the exceptions, with a few consistent with Bo- past, she did not that he know was a friend Belmontes, lanos’s. According to it was Vasquez and Bolanos. Vasquez who handed him the steel bar they McConnell’s, after left it and was
Belmontes stated that it was not he who (not Belmontes) Vasquez who stated that took the metal bar from Vasquez’s house he had had to take out a witness. Other- but that they car, while all in were wise, his was as follows. Bel- Vasquez gave it to him to use to break a montes window, Vasquez gathered the stereo and he then concealed it in his components and exited from Vasquez sleeve. McConnell’s stayed and Bolanos in the back They car door. compo- while loaded the stereo Belmontes walked to McCon- nents into the' Vasquez got nell’s front door. trunk. According Belmontes, to seat, back he and, shotgun, knocked Belmontes rode McConnell’s door to his surprise, she Bolanos drove. wiped As soon as Belmontes blood off answered. he home, found out that the bar and it she set down on the was he aban- floorboard. doned his intent It burglarize was not his idea to her resi- throw the bar out the river, dence. He told her that window into the he had been but Bolanos and hitchhiking and had stopped by Vasquez so, it him because told to do and he com- raining. was McConnell him plied. invited in. He testimony by concluded his stat- bulge She noticed a in his sleeve and ing they $100, asked then sold the stereo for ward, beer, and if he were about to hit another money, bought some divided acquaintance. of an Cutler was able to intervene before a drove to home but cross-examination, On he fight ensued. deliberation, the After three hours of significantly admitted Belmontes degree of first jury convicted Belmontes youth. than other smaller It special circumstances. murder with that Belmontes special findings made also Murillo, former Barbara killer, and that he had the actual testified a domestic vio- girlfriend, about intent that death occur. specific she incident that occurred when lence Belmontes move out of their asked Penalty The Phase B. keys her apartment give and to shared Aggravating Evidence leaving. Although apartment before leave, he was phase, prosecution willing Belmontes was At the evidence, give keys minimal her because his aggravating unwilling to introduced only apartment. were in the belongings of which consumed still the sum total giving tried to Mu- transcript. When he leave without double-spaced pages keys, to restrain attempted rillo the she the investi- oversaw The detective who by grabbing jacket, tearing him off au- the crime authenticated two gation of process. the ensu- During buttons in the depicting McConnell’s topsy photographs Murillo, four months ing fight, who was only relat- This was the wounds. child, second pregnant with Belmontes’s the crime ing to the circumstances of at- protection a “file” for grabbed penalty phase. at the the State introduced tempted phone police. Cartwright, manager of motel William knife. He telephone cut the cord with his Ontario, California, to an inci- testified her, head, pushed then hit her on an individual early 1979 in which dent point during tried to choke her. At some Rudy met at a motel named altercation, drop her to also caused him a .32 caliber attempted sell daughter. pair their infant were handgun acquired that he had automatic *7 eventually separated by several friends reportedly Belmontes exam- burglary. a neighbor A present who were at the time. it, it at weapon, pointed ined the cocked police, Bel- summoned the who arrived as said, Why buy Rudy got it now. “I’ve leaving premises. montes was the and Bel- Rudy premises it?” left the weapon. montes retained Finally, prosecution and defense en- stipulated to fact that Belmontes (the Cartwright record does not Steven of no 1979 to plea April tered contest William) any relationship with disclose charge being accessory after the an that he a conversation with testified had voluntary manslaughter. fact to The court Bel- February Belmontes in 1979 in which prosecutor to allow to intro- refused peo- montes alluded to the fact some indicating duce evidence that Belmontes upset with him. As Belmontes ple were victim, actually Jerry murdered talked, gun he indicated that he had a ruled Specifically, Howard. the court side, by slapping and he stated his belt his because he had that he was not concerned accessory after the we have crime of protection all the he needed. voluntary manslaughter fact to to which Cutler, no plea Ron a California Youth Authori- the defendant entered a has (“CYA”) counselor, he was ty testified that contest which thereafter guilty by pursuant chair swinging once observed Belmontes found the Court “very of no contest. That matter has he was plea said that close” with Bel- adjudicated. judicata It thirteen, been is res montes until he was about but any reference to fact that —or con- with thereafter had little contact with him. Sal- course of during duct occurred state, vaggio however, did Bel- when voluntary manslaughter.... [The] montes sixteen and grandmother was pres- prosecution will allow the Court lay in the dying hospital, he her visited testimony that [Bel- ent and evidence every day. He also attended her funeral. plea entered a contest to montes] no Salvaggio further testified that he believed accessory to volun- being after the fact was “a Belmontes victim of circumstance.” tary manslaughter. The will not Court Carol Belmontes her confirmed that testimony allow with reference marriage unhap- to Belmontes’s father was or not the defendant did fact whether py Belmontes, and tumultuous. Fernando shooting matter alleged, do the Sr., violent was a alcoholic who “wouldn’t having adjudicated. been her, ever work” and who regularly beat Consequently, was never informed her arm on breaking one occasion and of the details of death or Howard’s stabbing her another. alleged of Belmontes’s role in it.2 years ten marriage old when the up. broke Mitigating Evidence remarried, Mrs. Belmontes but her second marriage years later, five ended Bel- presentation mitigating when counsel, Schick, about age trial montes was fifteen. From that Belmontes’s John on, scope. was also limited in difficult to He This evidence control. primarily provided had not with cursory with lived his mother since he was presentation family of some years of Belmontes’s committed CYA two before history Christianity his conversion to younger McConnell’s murder. He had a Authority sister, while incarcerated at a Youth brother and with whom he was provided facility, some information re- “very Mrs. close.” garding during conduct that incarcera- the following exchange: ended with tion. Q. you your would view How relation- grandfather,
Belmontes’s maternal Mi- your ship son Fern[ando]? Salvaggio, chael daugh- testified about his My relationship? A. unhappy marriage ter’s to Belmontes’s fa- (affirmative). Q. Um-hmm Salvaggio daughter ther. stated that his always A. Same as it’s been. was sixteen when she ran from home away *8 father, and married Belmontes’s who was Q. qualities kind of you What can rec- unemployed, support family, refused to his they ommend to this as consid- excess, drank to and beat her. He also er fa[te]? his family stated that the Belmontes did not togo A. I don’t believe he should place have a stable to live for extended gas chamber. periods of time. He fact that lamented the Q. you’re Just because his mother? daughter his Italian-American had mar- man of Mexican Salvaggio ried a descent. A. I don’t believe he No. did it. appeal, challenge 2. On this the State does not conform his conduct to societal standards in a environment, propriety of the trial exclusion of to court’s structured evidence as his Rather, argues killing evidence. that if Bel- it role the Howard would be admissi- in attempted by way montes’s counsel had to offer ex- ble at cross-examination. See infra pert testimony ability as to to section II.B.2.C. family church-going with a local of this matched of the facts aware Q. you Are a ward program, part ward. As case? facil- to leave the CYA permitted would be nod) (Affirmative A. family specified ity with the to visit my son. I know Belmontes admitted week. times each questions. no more I have Mr. Schick: program initially entered M-2 that he Martinez, Bel- a close friend of Robert camp, time outside of spend in order to teens, early testified since his montes’s with his experiences after his favorable but spent great deal Belmontes that he and Haros, gradually be- family, the he M-2 working on Mar- usually together, of time faith their curious about Christian came served as car. Belmontes tinez’s low-rider it. and embraced wedding and was man at Martinez’s best to for advice and could turn he someone he that after Belmontes further testified wife. argued with his he support when Authority the Youth he paroled from was he felt Bel- also testified Martinez in for halfway at a house Oakland stayed person. Howev- not a violent montes was weeks, to Califor- then went Southern two consent, this tes- er, defense counsel’s with finally returned period, for a nia short following objection an timony was struck job area to take a to the Lodi if argued that who prosecutor, from that he moved He testified forest service. admitted, prosecution the evidence was close to so that he could be part to Lodi impeach to Martinez allowed should be However, the Youth outside of the Haros. Jerry Howard regarding the with evidence maintaining his Authority he had trouble killing. going and “started religious commitment ways,” part due to testified on his own old again [his] back to poor that he had At the time “pressure He recounted on the streets.” behalf. father, trial, religious who often with his had not abandoned his relationship he hit his mother. He that he was no entirely came home drunk but felt beliefs attending stopped percent” not like school hundred to longer did “dedicated one (some indicate grade ninth records in the religious commitment. get He wanted grade).
it the tenth be whether would When asked about pay help he could his mother joba so that if society sentenced able to contribute youth he described his Although the bills. death, rather than he stated prison life hard,” that he he twice stressed “pretty asked what that he “didn’t know.” When “use it as a crutch.” did not want to years 50 to 60 he would do with the next CYA, to his time at the respect With to life life if he sentenced were that he was in the testified say. that “it is hard to prison, he said Authority early from custody the Youth there, too many opportunities Ain’t too 1980, four months until November try stay you except can do many things CYA, he crime. at the prior to the While try stay I don’t know. Just alive. Pine the fire crew at the employed then asked whether he alive.” He was during which year, one Camp Grove *9 society prepared to contribute would be man way up from last time he worked his could if sentenced to any way in that he man, leader- position a to number two prison, responded, “[i]f in to which he life also responsibility. Belmontes ship and there, yes.” opportunity incarceration he during testified Barrett, at chaplain Reverend Dale in the M-2 Christian became involved Facility, Pine Authority’s Grove program a the Youth program, sponsorship that he testified knew Belmontes from his sense of well-being and self-image, and participation sponsor- the M-2 Christian prison ministries can continue to con- ship program. Barrett that Bel- explained tribute that to the young lives of men Beverly montes was matched with who have failed. participated pro- Fred Haro and in the When asked whether he would be involved addition, gram year. for a about Bel- in prison ministry with Belmontes if he baptized during stay montes was in the granted were in prison, life Barrett said Only percentage CYA. a small of program would, that he “if the issue of proximity participants who a made serious commit- not, would be resolvable. If I would be Christianity baptized. ment to were Bar- anxious to direct others to him geographi- that, rett felt unlike many wards who cally on the my basis of associations.” stayed in program only get out of Miller, Don chaplain assistant at camp and elicit favors from the sponsoring Authority’s Youth Facility Preston and the families, Belmontes had not “conned” Northern California Director of the M-2 them. asked When about whether he program, testified that helped place he thought Belmontes should be sentenced to halfway house Oakland death, that, Barrett although testified upon his release from the CYA. Miller personally penalty, believed the death that, time, stated at the he felt “a little bit he did not think Belmontes deserved to die doubtful” about whether Belmontes should thought premeditation because he was “a have been facility released from the be- debatable point,” thought cause, view, in Miller’s he needed a little “salvageable” person was a with “a lot of bit more regarding instruction “[accepting extenuating circumstances in his life.” authority and being adjust able to Barrett was of the view that Belmontes’s community outside.” Miller testified involvement in “some of the situations in being CYA, after released from the Bel- which e.g. he found McConnell’s himself’ — stayed montes halfway at the house for enormity murder —was attributable to “the only two weeks before moving to the Lodi peer pressure and the kind of socio- job area to take a with the forest service. logical part circumstances that were of his During weeks, however, those two Bel- life.” When asked thought whether he montes returned to Preston on a few occa- that Belmontes would be able to contribute speak sions to to wards about what life if something sentenced to life in prison was like “on the outside.” Miller de- parole,
without he stated that he would Belmontes, scribed and his message, as so, like to think upon based the tremen- wards, by well-received the CYA and he being by dous success that is realized believed that if Belmontes were committed people being number of in pris- involved life, prison for good he would be on ministries. I’d like to feel that we counseling prisoners other not to make the having great are deal of success. Per- same mistakes that he had. Miller was haps say someone could with regard to enthusiastic about working with Belmontes Fern[ando], you you’re “Do feel a fail- in this capacity and stated that Belmontes Obviously, ure?” this is not the result “definitely would be prison used we would like to see. percent About 80 system activity” this kind of because he of our young program men in the do related well to prisoners, especially other well, stay out of trouble. The rate of those who shared his background. ethnic greatly recidivism has been affected Martinez, the M-2 I programming. like to think Darlene born-again Chris- we make a contribution to their lives and tian and the wife of friend *10 voluntary manslaugh- Martinez, sory had after the fact to that she testified
Robert ter, murdered McConnell a years and had for six or seven known Belmontes Turning to the miti- calculated manner. friend. Dar- him a close and considered evidence, that prosecutor stated gating when Belmontes visit- that recounted lene “goes a factor that age from the Youth his release after ed them too, religious beliefs did he, ways,” that his was a both told her Authority, he really gravity not extenuate He also mentioned born-again Christian. crime, upon that “the evidence which and relationship girl- with his disputatious his religious experience rests is Murillo, [Belmontes’s] stated that he was friend, Moreover, shaky.” he noted somewhat During her. move in with planning to and Reverend Barrett’s that Fred Haro’s conversation, expressed con- Belmontes Christian, assessments of Belmontes’s favorable not a cern Murillo capacity prison to do well in character and be unable to that he would he worried entirely because neither credible on his own. were faith maintain his Christian commit thought Belmontes could witness Haro, Belmontes’s M- Beverly and Fred committed, jury “knew” he the crime the Bar- of Reverend sponsors and members truly that these witnesses did not and thus church, testified that rett’s prosecutor further know Belmontes. weekends Wednesday evenings and spent lingering no doubt argued there was year. They felt almost a with them for guilt, and stated regarding Belmontes’s relationship with good a they had had no remorse re- that Belmontes shown Belmontes, attended church with who murder. He then garding McConnell’s treated him like their own They them. mitigation stated that the evidence son, to them and was a opened up he or a aggravation were “wash” “draw” teenage on their own son. good influence the circumstances of until one considered after his re- They him several times saw crime; account, taking that factor into Fred Haro stated lease from CYA. was, in the view of appropriate a son” for “compassion as that he had prosecutor, death. that Belmontes had been statement, prosecutor’s closing After the in his commitment M-2 genuine permitted the court Belmontes to address sponsors. and his affection program jury personally. began by stating He that, although he was He also stated that, although childhood was not “a penalty,” the death be- “strongly for childhood,” he did not want to very good that, was innocent and lieved Belmontes a crutch. He further stated use it as innocent, he did not de- because he was the Haros and spending after time with serve to die. lived, they seeing how Arguments Closing that, I I wanted to be like wanted to my how it was. I change life and see closing arguments, prosecu- During said, Like I it’s a lot easier to do tried. tor the evidence introduced described jail you have a you’re while because Belmontes had once aggravation —that get I did out pressures. lot less When ward, at another CYA had swung a chair guess ... I I couldn’t deal with the inci- in the domestic violence been involved say, I out there. Like it’s pressures Murillo, gun had from a taken dent with lot different. him, to sell it to person who offered beliefs, religious to his he stated carrying Turning that he was once someone told an that he was being convicted of acces- gun, had been *11 coming saying right not here and now there. He doesn’t know that I actually I’m a full-fledged that Christian or a hit her the 20 says times like he I was. born-again. again I born I was and still This is his belief.... He doesn’t know way, I’m using feel the same but not just me.... I you ask that think about crutch, that as a But it also. is some- this a lot give it a lot of thought as thing really that I tried and I believe in. to the verdict on penalty phase. right you.
As for the verdict here that That’s it. Thank you’re now, going right to deliberate on statement, After Belmontes made this myself I keep my would like to life and counsel, Schick, that, John argued first really not it in gas lose chamber. notwithstanding verdict, the jury’s earlier prosecutor] [The has stated that he there no evidence that the murder was I does not feel have remorse. does [He] premeditated. Next, he stated al- not know.... was not there that [He] though he did not want to suggest that day. presence religion “the in itself is a total- respect crime, With Belmontes stat- factor[,]” ly mitigating religion plays a prosecutor ed “very, very vital function ... in anybody’s you has told that I’m the actual killer. life.” respect With to Belmontes’s child- He does not know. He wasn’t there. hood, only Schick said only going He’s hap- what he thinks while Mr. you Belmontes has told he is pened day ... going not to use a crutch for what [sic] says He I put my can’t feet in life, happened part the first of his I’d true, shoes. I [McConnell’s] It’s can’t. suggest you like to until got I go through didn’t it. I wasn’t the one Haro, Beverly know and Fred ... he actually who was killed. But he hasn’t know, really didn’t really he didn’t had to think actually get- sit and about the sense of that a being, values human ting put gas chamber life with- young man upon about to embark out imprisonment I’m I saying [sic]. not adulthood should have. And that didn’t do it or guilty. wasn’t Like I experience what his with Reverend Bar- said, I was involved to a certain extent. Beverly rett and Fred Haro I have pay for what’s happening— time he was there their home while he what happened, and I can deal with that. Authority the California Youth know, only You right there’s two choices meant. now, life without possibility or the He went on to state that penalty.
death Both of them ain’t real- ly really any good. al- There’s —isn’t hope what I suggests the evidence ways possibility you that while are you is Fernando Belmontes cannot make living with life without possibility it pretty on the outside. I think it is you will die in there. You can’t experience clear from the that he had really say. Things happen. inside, the kind of development he un-
But there opportunity is an to achieve dertook, the kind of experiences he had goals try yourself.... to better I with the Haros compared with his myself really my would like to have life being placed out on Again, his own.... try improve myself. excuse, we are saying this is an but prosecutor] you
[The has said that I stood problems have to understand the up there and hit once and that people dealing [McConnell] have in with their then hit again.... Again, her he wasn’t lives.
846 And harsh. You remember dur- argued that Belmontes it is Although Schick outside,” ing you compare voir were asked to dire it “on he did could not make I think it penalties. these two was con- it he could or would make that argue stantly to as life without referred then to proceeded “on the inside.” Schick the more possibility being as lenient of argu- his closing of the dominant theme Well, the two to the penalties. extent ment: that Mr. prosecutor] [the believes Bel- one of choices. is two Punishment die, I it suppose montes is le- should will, Consider, a man who you young if nient. old, Mr. years is 21 Belmontes---- Schick asked the to think about also 50 to years he has 55 left assume [L]ets why, society, as a sentence of life with- [A] his life.... people. justify we to kill We it in decide for parole means that possibility out nobody quarrels Certainly war. has day, days a a everyday, 24 hours seven with that.... he week, days year a will be without But How commodity that we how do we feel? do we precious that most justify justify have, punish taking You will him far it? How do we freedom. by killing far another creatures greater significant and for a more of God’s them? sending peo- his life him to We dehumanize other impact upon ple. at the war. prison for the rest of life. Look Vietnamese We weren’t fighting Vietnamese. We heard people about probably You’ve were Look at fighting Japa- Gooks. being asking a on death row position war, them Wops nese we called all for You remember execution. Japs. fought I World War we Huns. a Gary years ago, charade few Gillmore it in our possible We made mind to in Utah who wanted to be prisoner so we people go dehumanize these could people There are some who feel killed. not feel guilty out kill them and they can’t deal with it. way that because it. about possibil- It die than face that is easier to That must exactly is what we do and ity. easier to die than face the It is you being what to do in are asked evalu- never, your ever possibility having ating the life of Fernando Belmontes. you If want to and I impose, freedom. You are to look at him being asked impose you punishment. think need to yourself, say to man is not a human man needs to young punished. be This being.... be able to You must do you to tell going I’m not isn’t go through process to of dehuman- you if want impose truth. But izing kill him in order to him. And him that punishment upon meaning, has ladies in that is gentleman, exactly what it, send prison that has teeth to him to produced penalty I at this life, long the rest of his however trial has not [H]e has shown.... been only may trying suggest be.... I’m proven [sic]. to be dehuman any it’s something because difficult for point At no mention to conceive of such harsh did Schick us experiences re- traumatic un- prison being life in without ever or his during youth.3 derwent his childhood leased. emphasize is not we issue this statement who failed this testi- The dissent takes fact, give mony; proper it Schick. he even "fail[] that we em- is never *13 conduct; why jury criminal the should you to continue to discuss the mat- consider those circumstances determin- ter you and for to go over the ing Belmontes was an individual whether instructions again with one anoth- put who should be to death or whose life er, that the possibility of making a spared. should be decision is there? JUROR NORTON: I believe there is a Jury’s Penalty
4. The
Deliberations
possibility.
and Verdict
exchange,
After this
jury
continued its
jury
day
The
deliberated for a
and a half deliberations. A little more than a day
reaching
before
a verdict. On the first
later,
jury
reached a verdict and sen-
day,
deliberations,
after several hours of
tenced Belmontes to death. After the ver-
jury
judge
sent
a note asking, dict,
judge
sent a
jurors
letter to the
happens
“What
if we cannot reach a ver-
thanking them for their service and telling
majority
dict?” and “Can the
rule on life
them that their “decision is acceptable and
imprisonment?”
jury
brought
The
shall be followed.” Subsequently, he im-
courtroom,
back into the
judge
and the
posed
judgment
and sentence of death.
instructions,
portion
jury
reread a
of the
Appeals
C. State
and Federal Habeas
emphasizing
jurors
that “all 12
agree,
must
Review
Thereafter,
if you can.”
following
ex-
change occurred:
The
Supreme
California
Court affirmed
Belmontes’s conviction and sentence in
can’t,
JUROR HAILSTONE:
If we
1988,
Belmontes,
People
744,
v.
45 Cal.3d
Judge,
happens?
what
126,
248 Cal.Rptr.
(1988),
THE
you
COURT: I can’t tell
that.
Supreme
the U.S.
Court denied certiorari
JUROR WILSON: That
is what we
California,
1989. Belmontes v.
488 U.S.
wanted to know.
1034,
848,
109 S.Ct.
ton, you 1993, will be able to In make after the Supreme California decision in this matter? summarily Court dismissed Belmontes’s inadequate mony of the insubstantial Mayfield closing miti- See in his statement. gating Woodford, manage pres- (9th Cir.2001) v. 270 F.3d that he did (en explain why banc) ent and to (finding performance them that evidence deficient persuade spare should part them to explain Belmontes's because counsel "failed to to the life. Our significance cases make clear that in addition to mitigating evi- presenting testify mitigat- witnesses during closing argument”). about dence ... circumstances, ing issue, supra defense counsel must also For further discussion of this see explain significance testi- at section II.B.2.a. Attorneys for evidentiary ing president hear- California him an denying petition, Justice, claims, and was a lecturer proceedings on Criminal of his ing on Law, magis- before a Clara Law resumed Boalt Hall School of Santa the federal writ 1996, magistrate judge School, many Hastings Law School for judge. trate request for an eviden- deposition testi- years. denied Belmontes’s At the time of his claims, grant- hearing various but tiary mur- mony, Margolin had tried numerous expand the record to his motion to ed represented scores of der cases and had declarations, and other depositions, include jurisdic- appeal criminal defendants on parties. documents submitted country. He had also tions across the judge and the district magistrate judge respect an served as *14 all this material considered thereafter trial counsel in numerous competency rulings. their making when capital proceedings. habeas declarations, testimony, deposition Larsen testified that a deposition, In his par- evidence submitted and other attorney repre- trial reasonably competent critical omissions in Schick’s ties revealed Joaquin in senting capital a defendant San in investigation prepara- and his mitigation that he County in 1982 would have known submis- penalty phase. for the These tion duty thorough a to conduct a investi- that there was a sions also demonstrated factors, gation potentially mitigating of all mitigating amount of additional substantial background and including the defendant’s that could and should have been evidence about the basis mental state. When asked presented investigated, developed, that his opinion, of that Larsen stated Fi- of Belmontes’s trial. penalty phase opinion upon was based the California and and the record also nally, the evidence Supreme establishing Court cases U.S. properly that counsel failed to revealed competent representation standards for for penalty the witnesses prepare cases, the American Bar capital as well as failed to to the phase hearing explain duty regarding standards Association meager the relevance of the counsel, that were in existence of defense present. he did prior proceeding, Belmontes At the habeas Margolin likewise testified that rea- experts of two sonably attorney representing a competent who ineffective assistance of counsel capital defendant California prepared had not opined that Schick investigating would have known both reasonably compe- in a penalty phase of a de- positive negative aspects expert, tent manner. The first James fendant’s mental state was essential. Such Larsen, deputy public de- is the former lawyer likewise have known that a would code- represented fender who Belmontes’s information duty he had a to obtain about fendant, Vasquez, for whom he Domingo childhood, personality, the defendant’s his- degree mur- negotiated plea second prob- mental health tory of medical and trial in der. At the time of Belmontes’s lems, gather and to all school and medical experi- of the most Larsen was one put on notice that the de- records. When attorneys in San enced criminal defense user, drug might fendant be such County, county in which Bel- Joaquin known that he had lawyer would also have ex- montes was tried. Belmontes’s second the extent of the duty investigate Margolin, is the former pert, Ephraim drug defendant’s use and its effect on his president of the National Association Lawyers, the found- behavior. Criminal Defense respect mitiga- ger, With to whether Schick’s potential contact several penalty- witnesses, investigation performed phase had been in a including tion a few of Bel- manner, constitutionally adequate family members, Larsen montes’s friends and Haros, view, in his and a few testified Schick had “not CYA staff members. Berwanger After reasonably competent potential as a attor- met with these act[ed] witnesses, ney” conducting prepared three brief penalty-phase reports. inves- Schick tigation obtained Belmontes’s investigate because he failed to CYA file and met potential once with Assistant mitigating Chaplain evidence related to Don Mil- Berwanger’s reports ler. various factors set forth in Cali- statute, CYA file penalty fornia’s death nota- constitute the sum total most reports bly prepared evidence related to that were Belmontes’s mental the docu- ments that Specifically, gathered preparation state. Larsen noted that were penalty for the pre-trial phase. there was information in the Based in- re- on this vestigation, port prepared by psychiatrist Schick decided that goals Dr. Cava- naugh, reports respect prepared by phase Schick’s would be (1) (2) Belmontes, investigators, and Belmontes’s CYA file humanize show that *15 that he would not reasonably compe- prisoner would have led be difficult and attorney tent could form investiga- good relationships to conduct further with people, (3) respect provide tion with to Belmontes’s back- with information about (4) ground background, and mental lingering state. raise doubt about whether Belmontes was the Margolin likewise testified in his actual killer. view, Schick did not act in a competent preparing manner in penalty phase for the Although psychiatrist, Schick hired a of Specifically, Belmontes’s trial. he testi- Dr. Cavanaugh, to evaluate Belmontes’s performed incompetently fied Schick purposes mental state for guilt phase, he did not ask Cavanaugh to com- failing] investigate to leads which any ment on issues penalty relevant to the should have been obvious to him. phase, any and did not consult psycholo- attempt present Where he did to evi- gists psychiatrists or respect any with to dence, presented way he it in a which possible defect, impairment, mental or con- did not link it to anything that would might dition that be sentencing relevant to meaningful jury. have been to the He opposed guilt. Specifically, he did did not have a why coherent notion of he any expert not ask to evaluate the effect presenting [present- what he [was] mitigating Belmontes of the ed].... regarding his troubled childhood or his prepare did not
[H]e witnesses for repeatedly mental condition. Schick testi- which eliciting, he was strategic fied that he had no reason for and I think that ... he infected the failing Cavanaugh to consult with Dr. or [penalty] whole ... in- proceeding any psychiatrist psychologist other competency. import about the mitigating such evi- relationship dence or its to Belmontes’s Mitigation 1. Schick’s Investigation Indeed, subsequent behavior. even when Penalty-Phase Preparations attorney ques- the State’s asked Schick hearing designed The evidence the habeas re- tions him encourage to state trial, that a vealed month or two before that he had a tactical reason for this fail- ure, an investigator, Schick had Jim Berwan- Schick testified his decision not to investigation not mo- Schick also knew Belmontes had an conduct such abuse, opening history yet the door drug tivated fear serious he did any evidence or other damaging rebuttal investigate not whether evi- gave following ac- rationale. Schick drug dence related to Belmontes’s use processes regarding mental count of his should be at the phase. an or to investigation his failure to conduct put Belmontes’s CYA file also Schick on present evidence: such dropped notice that Belmontes had out of going through a I can’t remember grade suggested school the tenth saying, I “Should process conscious experienced that he some difficulties had mitigation state evi- develop [mental there, yet any did not obtain Schick And, “Therefore the such- dence]?” records, nor he Belmontes’s school did I’m going reason and-such tactical any contact of Belmontes’s former teach- I just something It wasn’t do it.” ers. can’t going I recall focused on.... saying myself, through process Yet another document psychiatrist I on a at this put “Should CYA file noted the fact that Belmontes stage?” Cadets, had been involved “in the scouts you today as I sit I can’t tell here And and little league and also involved in school deci- was some tactical there organized athletics.” groups and Schick sion .... investigate did not Belmontes’s involve- through going any process- I can’t recall activities, any ment in of these nor did es like that. We interviewed present obtain or informa- *16 investigation per- penalty our focused any aspects tion about other of Bel- witnesses that were background sonal might montes’s childhood that further hu- to, made reference and that’s called and possessed manize him or that he a show emphasis in put my penalty I
where positive number of attributes. presentation. trying say is I What I’m don’t Belmontes’s CYA file also made clear went cognitively through think I and Alayne performed that Dr. psy- Yates rejected any it for reason. chological testing during on Belmontes failing psy- Authority, In a time consult the Youth results of addition chologist Schick failed to psychiatrist, easily or which were obtainable. Another leads, pursue many of which suggested a host document in the file that Bel- discovery would led to the of addi- have suffering montes from might depres- be tional would Despite psy- sion. his awareness humanized Belmontes. chological testing and the possibility suffered from depression, aware, through was. Schick
Although a copy Schick did not obtain the results sources, file and CYA other Belmontes’s psychological testing, CYA not did had suffered from rheu- discuss Dr. Yates’s evaluation of Bel- matic and other illnesses as an ado- fever any montes other psychia- with her or with lescent, these knew that illnesses had and, above, trist or as psychologist, noted debilitating markedly been and that Bel- did not independent seek an evaluation of repeatedly hospitalized montes had been personality health or result, Belmontes’s mental never or requested Schick for purposes penalty phase. traits of the hospital medical or obtained Belmontes’s testified, simply As he did think Schick records. all, spare his life. All in exploring about these matters connec- should the testi- penalty phase mony plain defense. makes that Schick failed to tion with adequately effectively prepare Bel- respect tempera- to Belmontes’s With for crucial portion montes of the trial. CYA, adjustment ment and to the the file contained numerous references to the fact Mitigating 2. Additional Evidence possessed positive quali- that Belmontes That Should Have Been Presented report, example, ties. In one for a CYA Jury to the staff member described Belmontes as investiga- habeas counsel’s someone who “relates to all ethnic tion revealed that large quan- there was a groups,” non-delinquent, is passive tity of mitigating evidence related to Bel- than aggressive, exploitive, rather or as- background montes’s and mental state that another, person saultive. CYA staff was never uncovered or that, being pressured by noted even after jury on account of failure Schick’s to inves- against other Chicano wards to retaliate leads, tigate, up to follow on various and to personal belong- ward who had stolen his psychologist have a or psychiatrist evalu- ings, engage Belmontes refused to in vio- ate Belmontes for purposes lence and instead asked CYA officials to phase. facility him to another transfer where he pressures. would not face such Notwith- respect With to Belmontes’s childhood leads, standing adolescence, these Schick did not seek and habeas counsel’s investi- to obtain additional information about gation grow- revealed in addition to positive the incidents of conduct described ing up poverty-stricken family in a above, with any psychol- father, alcoholic, nor did discuss which his profound beat ogist psychiatrist or other Bel- severely regularly, his mother Bel- prospects positive montes’s for institution- montes dealt with a host of other traumas. adjustment. al old, years he was five example, When his 10-month-old sister died of a brain failing investigate In addition to nu- *17 death, tumor. After her Belmontes exhib- leads, prepare merous did Schick little to symptoms depression repeated- ited of and testify. the witnesses he called to With ly cemetery visited the where she had respect to what had been done in order to dealing been In addition buried. prepare Belmontes to make a statement to alcoholism, his father’s Belmontes also suf- jury at of penalty phase, the close grand- fered as a result of his maternal for example, Schick testified that he and prescription drug mother’s alcoholism and “probably Belmontes talked about it a lit- addiction, which, in combination with her tle bit.... I’m sure he talked a little bit behavior, manipulative controlling and going say, may about what he was and I im- caused constant strife within both his have offered advice to him.” If he did family. mediate and extended advice, very offer it Belmontes was not good In In spite adversity experienced, advice. of the he kind, phase testimony, second-guessed responsible he the Belmontes was a and verdict, remorse, jury’s very he little pleasant showed he likeable child with demean- way loving protective could not articulate concrete in He was a and older or. if society younger siblings, which he would contribute to he brother to his two prison, respectful kind and his mater- were sentenced life and he did was toward explain any grandparents notwithstanding not evidence nal the fact jury any why they they disapproved or offer the reasons of him on account of men, relations with a number of background. partici- He sexual mixed racial his Cadets, Navy to the League, frequently brought in Little the men back pated paper had a route. family lived. sports, team motel room which the school, made kept up early years, his teen, By the time he was a got along with his easily, friends using drugs regular started on a basis. teachers. murder, Around the time of McConnell’s 14, however, Belmontes was be- ageAt heroin, regularly using marijuana, he was fever, a condition by set rheumatic LSD, and PCP.5 repeatedly hospitalized. The which he was discovering In addition to the evidence significantly debilitating and disease above, counsel’s investi- described habeas attending school and stop him to required plain that should have gation made Schick sports his involvement to terminate psychologist of a utilized the result, he was activities. As other social explain to the effec- psychiatrist pur- peers his and unable to isolated from tively the conduct and on his impact his through which he had for- sue the means mental health of the multitude of traumas his traumatic home life. merly escaped repeatedly experienced told as a as a child and ado- He was also condition, likely he would Specifically, result of this such an lescent. could years age.4 of He became past live explained psychologi- withdrawn, and lost some of the depressed, impact cal on Belmontes of his father’s traits that seemed to positive personality alcoholism; witnessing severe of severe during early years. his developing be parents; domestic violence between his of family’s poverty; observing of his thereafter, Shortly step- his mother and profligate activity; mother’s sexual of be- result, family divorced. As father severely during stage ill in his ing critical cheap into a motel in was forced to move development social and his removal from family and four members which Belmontes life, in- small, experiences teenage the normal really one-room shack.” lived in “a peers; time, cluding social interaction with his disrupt- their lives were During this symptoms depression and the re- His mother’s behavior ed and unstable. engaged peated predictions erratic. She casual he would die be- became age causing argues that Belmontes's illness would die him to 4. The dissent Op. Regardless at 885. take risks that he would not have taken if he was not severe. Dis. actually that he had a even whether or not-the disease was believed future. Murillo Belmontes, yelled life-threatening, Belmontes's doctors and testified that when she fam- *18 reply, put ily though up he would “You won't have to as it were. The social behaved long.” me physical they with because I won't be around isolation and limitations that Belmontes, they imposed whether or not necessary, signifi- caused him to suffer were 5. that The dissent's claim Barbara Murillo negative psychological cant effects. Addition- drugs testified that Belmontes did not do be- ally, belief that he would die Belmontes's puzzling. cause it was bad for his illness is young profound psychological had a effect on Op According Dis. at n.20. to her decla- him, ration, regardless medically of whether it was they dating, first started Bel- when quote's drugs The dissent Dr. Yates's testi- they accurate. did do when montes not or alcohol although mony mother ex- Belmontes's went out. Murillo also stated that Bel- pected young, approve drug to die Belmontes did montes’s mother of his Op. never that he would. Dis. use because she believed it was bad for his believed Moreover, However, according to Barbara Muril- illness. Murillo's declaration con- lo, multiple drug girlfriend references to Belmontes’s Belmontes's and the mother of tains children, use, including his use of heroin. his Belmontes did believe that he adulthood; killing of Ms. finally, either of the McConnell he reached fore abuse. Such an history sentencing. his of substance at the time of his trial and explained the extent expert also could have words, conspicuously missing In other contrib- problems these caused or to which penalty phase from the of Belmontes’s trial general behavior and uted to Belmontes’s testimony of an expert was the who could in murder. to his involvement McConnell’s make connections between the various testimony of Dr. James deposition mitigation explain in themes case and Missett, which Belmontes submitted to they to the how could have contribut- court, to which district reveals extent ed to Belmontes’s involvement in criminal expert explained an could have such activity. that Bel- significance of the difficulties respect experience With to Belmontes’s explain- in experienced, montes addition CYA, as a ward at the habeas counsel significance positive aspects ing the presented uncovered and to the district early development. Specifically, Dr. of his of, prior to the onset court considerable additional evidence that Missett testified fever, function- jury. rheumatic Belmontes was could have been to the As chil- ing exemplary above, in an manner vis-a-vis many noted there were references privation similar and trau- dren who faced in the positive to Belmontes’s conduct years, a fact during ma their formative file, his including CYA contained suggests possesses positive engage gang refusal to violence. Other conforming personality core traits. documents the file stated that Bel- However, the combination of the traumas others, passive, montes relates well experienced early on in life and his directions, working with follows likes him struggle with rheumatic fever caused Dr. could have testi- young people. Yates ground comparison “los[e] him diagnosed fied that she as a conform- academically socially” peers [and] [both] ist, manipulator. Although not a there and “intensified sense of himself [his] negative aspects to Belmontes’s were also defective, never something from which he time in the that were noted in the CYA Missett, According recovered.” to Dr. -namely struggled that Belmontes file— in turn led to Belmontes’s substance abuse adjust from one institu- when transferred problems and his eventual involvement had, another, and that he at one tion to activity. respect criminal to the evi- With in the formation of a point, been involved regarding background Belmontes’s dence that his clique Chicáno file revealed —the Dr. penalty phase, that was offered at the whole, was, positive. quite conduct on the Missett stated entirely separate point, an Schick On ... thing the critical to me evidence from Dr. could have obtained whatsoever in there was no reference prospects for regarding Yates link- penalty phase testimony to the adjustment. Similar positive institutional age that exists between these various evidence in that ly, he could have obtained factors[,] way ... in which the an witness such as regard from *19 at in time could be point behavior one Enomoto, Director of Gerald the former Mr. Bel- experience related to the Department the of Corrections California life, way in or to the montes had earlier Marshal for the and current United States social, biological, various and the Eastern District of California. Enomoto educational, environmental, other adjust could have testified that Belmontes Belmontes’[s] factors interrelated Mr. environment of of the time ed well to the structured life and could be focused as likely to to penalty phase, and was be able tion even where such CYA to if conform his conduct societal norms unhelpful guilt phase, evidence is at the prison. Although confined in a state Ninth prece- reasonable under Circuit negative reports State focused on several dent.” file, Enomoto told the Belmontes’s CYA however, respect prejudice, With to reports district court that the the file district court held that “Schick introduced improvement, showed a clear trend of with testimony as to most of the factual mat- very but beginning positive trouble at the argues ters” that Belmontes should have opportu Belmontes had the conduct once introduced, “pro- been and that Belmontes nity facility. acclimate to the Enomoto no vides reason believe that fact that Belmontes had refused found the professional help, beyond needed defense engage gang extremely violence to be argument, counsel’s to understand evi- very significant positive.6 difficult petitioner’s dence childhood or
prospects adjustment.”7 for institutional added). (emphasis The court then re- for parties The filed cross motions sum- claims, remaining ferred Belmontes’s six 2000, mary judgment. In after several briefed, yet which had not been to the inaction, years of with- judge the district 2001, magistrate judge. January In drew referral of the matter from the magistrate judge denying recommended magistrate judge, argument heard oral on respect relief with outstanding the ineffective assistance of counsel claim claims, 2001, May and in court district subsequently ruled that counsel had adopted magistrate’s findings and rec- been deficient but that Belmontes did not ommendations, petition, denied the and en- prejudice suffer as a result. The district tered judgment against Belmontes. judge’s decision was based on the written appealed. subsequent evidence in ac- parties, submitted history of this case is set forth above. We magistrate judge’s pre- cordance with the must now resolve Belmontes’s ineffective ruling denying request vious claim, assistance of counsel few re- evidentiary hearing an with live wit- previously lated claims that we have not ruling, nesses. noted that so the court resolved. record here shows that trial counsel “[t]he
pursued investigation no whatsoever into
Belmontes’ mental state for the II. DISCUSSION phase. acknowledged Schick that after A. Standard of Review consulting Dr. Cavanaugh competency, insanity, petition Belmontes’s federal habeas capacity, and diminished he had prior was filed Cavanaugh, no further contact Dr. enactment of the with Penalty Antiterrorism and Effective Death psychiatrist other relation to basis, (“AEDPA”), thus, penalty phase.” the Act of 1996 pre- On “[cjounsel’s court AEDPA apply held that failure to inves- standards to his claims. tigate presenta- Douglas Woodford, mental state evidence for v. 316 F.3d 6. regarding contrary Whether institution- As noted above to the district statement, counsel, adjustment court’s al defense in his clos- should have been adduced is a ing argument perti- made no mention of the See section II. separately. matter we discuss attempt explain nent evidence and did not B.2.c. the relevance of such evidence to Belmontes's personality and future conduct.
855
Cir.2003).
(9th
Supreme Court]
a
states
court reviews
dis
California
This
lim-
acknowledges
“Trial counsel
that he
deny habeas relief
trict court’s decision
Ylst,
792,
investigation
mental state
to Dr.
ited his
470 F.3d
799
Raley v.
de novo.
interview, did not conduct
Cir.2006).
law,
Cavanaugh’s
(9th
pre-AEDPA
“Under
any comprehensive background investi-
alleging
claim
ineffective
consider a
we
gation regarding petitioner’s physical
question
as a mixed
assistance of counsel
during
up-
conditions
and mental
that we review de novo.”
of law and fact
Sehriro,
623,
up
and did not follow the unre-
bringing,
427 F.3d
628
v.
Summerlin
banc)
Cir.2005) (en
emanating from Dr. Cava-
(9th
solved issues
(citing Rios v.
(9th
psychological
with
Rocha,
796,
naugh’s examination
799 n. 4
Cir.
299 F.3d
2002)).
error,
any other means.” Petitioner
testing or
clear
howev
“We review for
further
this claim
was unable to
describe
er,
findings of fact.”
the district court’s
982,
in state court because the California Su-
Woodford,
v.
463 F.3d
988
Frierson
(9th Cir.2006).
requests
denied his
for
preme
Court
Finally,
this is
“[b]ecause
follow-up investigations
case,
funds to conduct
we do not review the
pre-AEDPA
and examinations.
to determine
legal
state court’s
conclusions
‘objectively unreason
they are
whether
Thus, petitioner’s state court claim re-
able;’ rather,
‘simply
legal
we
resolve the
potential
to evidence and
evi-
ferred
(cid:127)
merits,
ordinary
under the
issue on the
provides the basis for his
dence that now
” Summerlin,
(quot
tance of Counsel
we
reach
Reed,
255, 109
Harris v.
489 U.S.
S.Ct.
1. Procedural Default
(1989),
Supreme
Finally,
14,
1441,
if the
Supreme
even
California
n.
90 S.Ct.
ly
petitions-we
habeas
would nonetheless
reach the merits of that
claim. We did not
order
prevail
on a claim of
recognize
procedural
California’s
default
counsel,
ineffective
petition
assistance of
regarding
indepen-
rules
untimeliness as
er must show that his trial
per
counsel’s
adequate
grounds
dent and
state
for re-
objective
formance “fell below an
standard
petitioner’s
jecting
habeas claim until
of reasonableness”
and that “there is a
Calderon,
later,
see Karis v.
1993,
if not
probability
reasonable
but for coun
1117,
(9th Cir.2002);
283 F.3d
1132 n. 8
unprofessional errors,
sel’s
the result of
Calderon,
Morales v.
85 F.3d
1387,
1393
proceeding
would have been different.”
(9th Cir.1996), well after
the California
Strickland v. Washington, 466 U.S.
668,
Supreme
rejected
Court
687-88, 694, 104
2052,
S.Ct.
to the merits of Belmontes’s ineffective a. Deficient Performance9 assistance counsel claim. Strickland, Under competence counsel’s Assistance.8 Ineffective presumed. Thus, Belmontes must rebut presumption
“The
this
right
by demonstrating
Sixth Amendment
in a
performance
counsel
criminal
trial
Schick’s
includes ‘the
was unreasonable
right
to the effective
prevailing
assistance of coun
under
professional norms and
” Summerlin,
sel.’
857 attorneys criminal defense that inform performance scrutiny of counsel’s Judicial ‘objective standard of deferential, must our view as to the and thus we highly is we assess attor- reasonableness’ which per- from his conduct evaluate Schick’s respect occurred, ney performance, particularly without the time it spective at Summerlin, 689, duty investigate,” 104 to hindsight. Id. at the benefit at 629. af- 427 F.3d choices made “[Strategic 2052. S.Ct. thorough investigation [the relevant]
ter
Specifically, we have held that
options
plausible
relevant to
law and facts
“
effectively ... counsel must
perform
‘[t]o
690,
unchallengeable.” Id. at
virtually
are
engage
investigation
sufficient
conduct
However,
104 S.Ct.
preparation
to be able
sufficient
after less than
strategic choices made
explain[
significance
‘presentí ]
]’
are reasonable
investigation
complete
”
[mitigating] evidence.’
of all the available
that reasonable
to the extent
precisely
(9th
979,
Woodford,
1000
Allen v.
395 F.3d
the limi-
judgments support
professional
Cir.2005)
Woodford, 270
(citing Mayfield v.
In other
investigation.
tations on
(9th Cir.2001) (en banc));
915, 927
see
F.3d
words,
rea-
duty
counsel has a
to make
Summerlin,
Indeed,
First, humanized Belmontes experts to consult Schick failed jury. Sec- sympathy of members adequately investigate miti- and otherwise ond, Cavanaugh’s report mentioned phase, not- gating penalty evidence for the history of an extensive sub- Belmontes had withstanding the fact that he knew such abuse, drugs use of Although existed. stance potentially impulse con- negatively affected expert, health Dr. alcohol hired a mental Schick attorney presented A reasonable pur- Belmontes for trol. Cavanaugh, to evaluate performance and the dissent does attempts distinguish cient the two 10. The dissent cases, analysis prejudice to the issue of analysis. but its is limited dispute We discuss our section, Op. prejudice. at 891. In this Dis. below. however, only the issue of defi- we consider would have consulted with this information tamable evidence that Belmontes was told Cavanaugh potential repeatedly with or another ex- that he should expect to die finding, age such a before he reached the of 21. pert regarding whether guilt though unhelpful phase, might at the Schick knew that Belmontes phase be useful at the either to dropped out of school in tenth grade youthful harmful explain how Belmontes’s struggled academically, and that he yet experiences may turning have led to his any Schick did not obtain of Belmontes’s help cope him substance abuse school records or any contact of Be- trauma his life or to describe how those teachers, montes’s former and did no other experiences coupled when with the related investigation not, of this issue. He did may substance abuse have contributed to example, seek to discover whether Bel- criminal conduct.11 regard montes’s conduct awas re- sult of of the traumatic events he had failing In addition to to consult a psy- Further, experienced. although Schick chologist psychiatrist about the avail- knew that Belmontes abusing marijua- ability mitigating reading evidence after na, POP, heroin, amphetamines, and LSD Cavanaugh’s report, pur- failed to Schick *25 offense, around the time of the he did not leads, many sue a host of other obvious of investigate whether mitigating evidence which would have caused him to discover related drug to Belmontes’s use existed or significant mitigating additional evidence. should be introduced. Although knew that Schick Belmontes had Cadets, participated League, Little Schick psychological also knew that test- that sports, team he had been a well- ing performed had been on Belmontes child, behaved and likeable Schick did not CYA, Dr. Yates during his time at the the investigate pre- whether evidence could be results of which easily were obtainable had regarding positive sented attributes requested Schick these records. Despite possessed, evidence that knowledge, Schick did not obtain a might him eyes have humanized in the of copy of results of psychological testing, jurors and given them an affirmative did not discuss Dr. Yates’s evaluation of spare reason to his life. Belmontes with any her or with psy- other chiatrist or psychologist, and did not seek Schick was also aware that Belmontes independent an evaluation of Belmontes’s had suffered from rheumatic fever and mental health or personality pur- traits for adolescent, other illnesses as an and knew poses of penalty phase. these had markedly illnesses been debilitating hospital- and that he had been Alternatively, Schick was aware that times, ized many yet sought he neither nor Belmontes’s CYA file contained numerous obtained hospital Belmontes’s medical or references to the qualities those that made records, nor did he uncover easily ob- him good positive candidate for institu- Contrary suggestion, to the dissent’s we do failing would follow from to introduce it. Here, not hold that Schick could have or simply point should we out Schick's failure to testify an fully investigate who would Belmontes’s cir- that substance abuse led Belmontes to lose preju- cumstances. We discuss below in the impulses control of his and murder McCon- dice section the effect of Schick’s failure to Rather, nell. we hold that proper investigation Schick's failure to conduct the and obtain investigate section, Belmontes’s mental necessary state and his- witnesses. In that we tory of substance abuse constituted deficient reasonably competent consider what a attor- performance. ney The dissent confuses the fail- would have done with the witnesses and investigate ure to prejudice evidence with the evidence that Schick should have uncovered. have coached Notwithstanding implies, that Schick should adjustment. tional leads, However, duty did had a multiple of such Schick the witnesses. he presence infor- any additional attempt to obtain them of their purpose not discuss with con- positive the incidents of mation about he testimony, type questions reveal the of file, he nor did stand, duct described CYA to ask them on the planned any psychologist psychia- discuss them as to what kind of informa- instruct potential expert Belmontes’s or other trist and what helpful would find tion adjust- positive institutional prospects be relevant. kind of would not ment. at testimony given from the It is evident not do phase that Schick did pursue failure to these obvious
Schick’s who knew this. Several witnesses led to the leads, many of which would have clearly pro- best and could have mitigating evi- Belmontes discovery compelling fell did dence, clearly compelling mitigating unreasonable vided compe- testify single quality professional positive standards below Lambright, Instead, in 1982. tence extant See witness after witness possessed. 1119-20; Stankemtz, at 365 F.3d at just F.3d found told the same Bean, 1094; 719-20; Douglas, 316 F.3d murder guilty degree first true especially at 1080. This is 163 F.3d doubt, a reasonable that Belmontes beyond failure that his given that Schick conceded penalty be- not receive the death should strategic a result of tactical or was not glaringly, was innocent.13 Most cause he that he part on his and admitted decision not offer a own mother did thought conducting simply had not son, not to her al- single reason execute rudimentary investigations regard- most *26 obviously she could have done so though mental Belmontes’s state. ing regarding properly she been advised inquiry.14 the purpose the and nature of ade- investigate to to failing In addition ill-prepared to similarly Belmontes was effectively prepare did not quately, Schick jury address at the close testify and to the testify.12 he to We lay the witnesses called result, could phase. As a penalty to as the dissent of the suggest, not mean do killing prac- incapable of another human Although son Schick claimed it was his own 12. likely jury actual the being). interview before their It far more that tice to witnesses testimony, specifically recall in- he could not interpret the insistence on witnesses’ would penalty in this terviewing phase the witnesses their innocence as evidence of Belmontes’s only were entries than, There three case. perhaps loyalty, as the ignorance, or phase log time related to Schick’s dissenting opinion suggests, as an indication preparation time intervals witness and those normally a violent “Belmontes was not that tasks, spent completing in- also other were Op. at person.” Dis. 892. up preparation, likely cluding trial that took hours he of the minimal number of the bulk *27 only Instead he said likeable child who showed great promise that Belmontes was ill-equipped to make it family’s despite instability his poverty. of prison. outside Perhaps as detrimental The death of his sister at an early age glaring as these omissions argu- were the subsequent struggle fever, with rheumatic ments that Schick did jury. make to the plus the social isolation depression Indeed, the main closing thrust was it, accompanied however, that pro- perverse argument if jurors psychological found and social effects on really client, despised they should sen- him. An expert could have explained to tence him prison to life in rather than jury experiences how such could have death because death would be the more led an individual to drugs abuse and alco- punishment. “lenient” hol and become involved criminal activi- ty- sum, In the record makes plain that expert 'The absence of such an par- Schick’s presentation of evidence at “ ticularly damaging given Schick’s failure to penalty phase place did not take after ‘all 15. jury, his address to experiences Belmontes in- ic childhood as a crutch. sisted that he did not want to use his traumat-
863
land,
694,
A
at
prejudicial. purpose mitigating F.3d at evidence is 1089; 932; jury 270 F.3d at that Mayfield, Ains ensure the defen- “treat[s] (9th 868, dant a ‘uniquely 268 F.3d as individual human Woodford, worth v. 878 Stewart, bein[g]’ Cir.2001); v. 140 and has made a reliable F.3d determi- Smith Cir.1998). (9th 1263, nation that death is the appropriate 1271 We have like sen- tence” (quoting based on v. North prejudice wise found counsel’s Woodson Car- olina, 304, 280, 2978, present and 428 U.S. 96 49 adequately prepare failure to S.Ct. (1976)) introduces, that he L.Ed.2d 944 overruled mitigating on other grounds v. jury Virginia, Atkins 536 adequately explain and to U.S. 304, 2242, 122 mitigating that evidence. S.Ct. 153 relevance of See L.Ed.2d 335 1122-23; (2002)); Blodgett, 614, Douglas, F.3d at Mak v. 970 F.2d Lambright, 490 619 (9th Cir.1992) (“The 1088-89; Mayfield, sentencing F.3d at 270 is hearing F.3d defense chance to jury at 928. counsel’s show the defendant, crime,
that
despite
ii. Lay witnesses
saving
worth
a human being.”).
as
perform
As a
deficient
testify
result
Schick’s
Schick failed to call witnesses to
ance,
old,
never heard much of
years
when Belmontes was five
testimony
lay
available
witness
about
his
sig
10-month-old sister died of a brain
death,
nificant mitigating circumstances of Bel-
tumor. After her
Belmontes exhib-
including
montes’s life
his difficult
ited symptoms
depression
child
and would
hood,
illness,
physical
drug abuse,
serious
repeatedly
cemetery
visit the
where his
positive
Specifically,
attributes.
ad
sister had been buried. Belmontes also
to presenting
dition
evidence demonstrat
suffered
a
grand-
as
result
his maternal
ing that
was born to a teenage
mother’s
prescription drug
alcoholism and
grew up
poverty-stricken
addiction, which,
mother and
in combination with her
father,
family
alcoholic,
an
manipulative
behavior,
in which his
controlling
severely
regularly,
beat his mother
caused constant strife within both his im-
introduced
Schick could have
substantial mediate and
family.
extended
Schick
mitigating
additional
evidence. He
could
testimony
could
also have introduced
through
have established
about
positive
attributes and
lay
strong
witnesses
Belmontes had to deal
character
a child in
as
the face of
kind,
with host of other traumas and adversity
adversity; he
responsible,
was a
during his childhood and adolescence.
likeable child
got along
who
well with his
Such
evidence serves
siblings,
to human
was respectful towards
grand-
ize the defendant and is critical in
parents despite
disapproval
their
of his
determination of whether
should mixed racial background, participated in
spare
activities,
life.
Penry
community
defendant’s
See
v.
kept up in school
302, 319,
Lynaugh, 492 U.S.
got along
S.Ct.
with his teachers
before
(1989)
illness,
(holding
17. The dissent living sympa- Belmontes's in a more situation trauma, illness, family verity of Belmontes’s light. only place thetic The that Belmontes response living conditions. to over- teenage years during call home could whelming unhap- an evidence of unstable and by people so one motel room shared five he life, py family attempts to show the dissent was forced to sacrifice a home life and stable "positive aspects there were of Bel- Additionally, places. in other find shelter family relationships.” Op. at Dis. montes’s record reflects that reason that Bel- one only “positive family aspect” of his 887. The stay did not motel was that montes at the to, actually point can life that the dissent room, own mother used lock him out of however, given by the account Belmontes’s is probably engaged in while she was sexual sister, trial, testify surviving who did strangers. encounters with Sundays Belmontes children spend par- with their father after their would suggest We do not that Belmontes was separation. Despite Id. the dissent’s ents’ during drugs the influence the com- under days memory characterization of her of these suggest, do we mission of the murder. Nor "positive,” as her neutral at best. is claims, Schick should have as the dissent portion of her declaration states: The relevant presented mental state evidence that very strong "My drank a lot and had a father culpable less Belmontes was for McCon- personality. years I was about five old when killing because was under the influ- nell he my parents separated. My came to father point drugs when Our ence of he killed her. pick Sundays, up on he took us for us drug only that evidence Belmontes’s use paternal grandmother’s to our house. rides or humanize should have been him spent day together, We whole we but showing tragic how the circumstances he any much because he never had never did up adversely experienced growing while af- money.” criminal fected him. Just Belmontes’s ac- downplays also the effect of The dissent tivity trauma was manifestation of the he by quoting illness Belmontes's childhood, during his so suffered difficult too sister’s declaration which she states Murillo, drug example, was his use. For Bel- she "notice or emotional did not understand ex-girlfriend, could have testified montes’s changes him” due to fever. Dis. rheumatic risky engaged Op. that Belmontes behavior Conveniently at 887. absent from drug hopelessness use explanation of such as out of because Belmontes’s sister’s dissent is thought going young. that he to die "notice why she did not or understand” very young not have changes evidence need in Belmontes—she was *30 866 mitigating all it
Of
the available
evidence
is also
In-
inconsistent
our law.
above,
jury
only
heard
deed,
above,
described
that
jury
as noted
heard testi-
alcoholic,
a
Belmontes’s father was
violent
mony as to
a few of
only
the numerous
family
that
poor,
that
Belmontes
adverse experiences that
had
born-again
became
Christian while incar-
youth,
suffered as a
heard nothing about
cerated, and that at the same time he went
him,
their effect on
and heard almost noth-
from last man to number two man in the
ing about
positive
his
attributes.
jury
Pine Grove
brigade.
fire
never
noted,
As we have often
the fact that a
testimony
the traumas
heard
about
that
capital jury
presented
cursory
with a
youth;
Belmontes faced
it
never
or incomplete presentation
mitigat-
of the
possessed many positive
heard that he
at-
ing
that
circumstances
should have been
tributes, and it never heard that he had
fully
more
and
thoroughly
presented does
struggled with substance abuse since his
See,
finding
prejudice.
obviate a
early
In Mayfield,
teens.
this court held
(find-
e.g., Lambright,
867 to may jurors have led the penalty delibera- believe jury’s of a the outcome nothing positive say If the the case there was to about Neither is here. tions. Thus, portion a of the avail- failure adequately had heard even him. Schick’s to jury testimony, likely it lay is humanizing ap- able and the witnesses prepare Belmontes would have chosen juror that at least one testimony his in pearing on behalf resulted Belmontes’s life. spare to harm- unhelpful, likely that was and even ful. This also undermines our confidence prejudiced by being In addition to jury’s delib- penalty in the outcome of the readily failure available present Schick’s to erations. compelling mitigating evidence and testimony, lay through witness Moreover, expert in of testi- the absence to failure prejudiced was also Schick’s mony, important it that coun- especially who of- adequately prepare the witnesses explain jurors to the adequately sel the he did the minimal evidence that fered in of significance mitigating the above, fail- As noted Schick’s introduce. Indeed, closing court argument. his lay witnesses resulted prepare ure to his perform effectively has held “[t]o testimony both conspicuous a absence case, phase capital penalty the of a counsel the difficulties Belmontes encoun- about preparation ... in sufficient engage must positive and about his as child tered explain[] able-to the ‘present!] to be from witnesses who knew qualities-even mitigating the significance all available Instead, best, including him his mother. ” Allen, (citing F.3d evidence.’ 395 at 1000 produced insisted the witnesses Schick (en banc)) (em- at 927 Mayfield, F.3d innocent the same that Belmontes was added). explain did the Schick phasis just him of first
jury guilty that had found the clos- mitigating jury evidence to beyond murder a reasonable doubt. degree He even ing argument at all. did not Similarly, Belmontes was not ade- because mitigating the relevant circum- mention jury, he prepared to address the quately stances, suggest any let connection alone single positive produc- not name a could the that oc- traumatic events between prison given if thing tive would do and his curred Belmontes’s childhood sentence, the of his spent majority life later behavior. Without the closing telling jury statement jurors, to make that connection for he had prosecutor did not know whether greater obligation to had an even Schick “he wasn’t murdered McConnell because himself. failure do so Defense counsel’s also and “he doesn’t know me.” He there” persuasive closing give thorough disregard miti- the few asked defendant, es- can argument prejudice that Schick gating pieces of evidence here, when, argu- closing pecially into evi- managed somehow introduce for counsel only opportunity ment is hearing, Larsen At the habeas Mr. dence. presen- compensate for deficiencies in Margolin that these sorts asserted Mr. Arave, See Pizzuto v. tation evidence. force severely undermined the of blunders Cir.2004) (9th 1247, 1259-61 385 F.3d testimony, and witnesses’ failure to remind (holding counsel’s negative backlash may have even created guilt from the jury of relevant evidence they con- jurors. Specifically, amongst argu- phase closing in his phase that the fact that several witnesses cluded defendant). Schick prejudiced the ments rejected jury’s verdict explicitly guilty closing argument. Instead it, squandered fact that may antagonized why the vote explaining should family own members even Belmontes’s punish- than capital rather speak redeeming qualities a life sentence could not to his *32 ment, that a argued he life sentence consti- the psychological impact on a of his child punishment tuted harsher than the sen- alcoholism, witnessing father’s serious simply of death. The district court tence severe domestic violence par- between his the “misremembered” facts or misunder- ents, family’s poverty, of his moth- his it that stood the law when concluded the humiliating er’s sexual performances, of jury professional help not need “be- did severely ill being during stage in critical un- yond argument” counsel’s to defense development, his social depressive his evidence. derstand being reactions to told he would not live argument, was no such notwith- There past history and of his of substance standing obligation present it. counsel’s to abuse. an expert Such also could have pre- On the basis of Schick’s failure to explained prob- the extent to which these pare present lay available witness tes- lems can or change cause contribute to a timony humanizing his fail- Belmontes and subsequent individuals that can lead to explain significance ure to the of the little criminal conduct. humanizing presented evidence actually he Missett, deposition testimony The of Dr. jury, to we the conclude that Belmontes which Belmontes submitted to district the prejudiced by his deficient counsel’s court, expert that testimony likely reveals performance, that our confidence the provided would have an additional reason that, is according-
verdict undermined and to that he conclude received ineffective ly, death his sentence must set aside. be
assistance of counsel. Dr. Missett testified Expert Hi Witnesses that, fever, to prior the onset of rheumatic functioning compared Belmontes was well addition, although the failure here is histories, to children with similar a fact conclusion, not essential to our Belmontes that suggests that possesses Belmontes argues agree and we that Schick failed to positive conforming personality core provide jury expert testimony traits. Dr. Missett further testified explained significance would have “had been able to of, [Belmontes] continue to upon, lay and elaborated both the testi- capitalize on ... expec- [these] assets mony lay that was and the testi- tation is that would have good had a mony presented. rather should have been prognosis However, his for life.” Specifically, in his rheu- presenting addition to above, matic fever and the resulting social iso- evidence described Schick should lation testimony psycholo- [his] have offered the “intensified sense of himself as of a defective, gist psychiatrist something effectively order from which never to explain jury ... after that.” day-to-day According terms the recovered to practical Missett, impact on an Dr. this in turn individual of the led to Belmontes’s kind of traumas that experi- depression, susceptibility to peer pressure, enced as child and problems,19 adolescent. Such an abuse substance even- expert could explained have tual activity. involvement criminal agrees dissent of Bel- evidence dissent references would pattern through montes's jury’s self-medication sympathy. undermined Ac- following drug use cording police social report illness and iso- that the dissent cites, lation would have sympathy elicited approached from the an informant the Ontario contends, jury. Op. Dis. police 886. The get dissent stated that he could however, that testimony open such buy police would gave heroin him. The door to rebuttal evidence $24 that Belmontes was informant and surveilled the transaction. However, actually drug gave dealer. Id. the slim money The informant Belmontes the that “the was not the benefit identify afforded lay juror
A
not trained
psychological
and behavioral con-
specific
explaining
the effects
of the traumas that Belmontes
sequences
physiological
that Caro’s
defects would
true with
particularly
This is
experienced.
behavior”).
have on his
consequences
of Belmontes’s
respect
*33
expert
The
heard a
jury never
credible
and his subse-
with rheumatic fever
bout
testify
Dr.
on
impact
like Missett
about the
history of
abuse. Accord-
quent
substance
the kind of
trau-
an individual of
childhood
testimony should have been
ingly, expert
that
explain
mas
Belmontes
suffered or
these
respect
to
issues.
in
activity
that
involvement
criminal
can
(finding
at 932
Mayfield, 270 F.3d
See
explained
hardships
the
sometimes be
fact
the
part
in
based on the
that
prejudice
experienced
youth.
an
a
individual
as
to
have
“con-
jury
opportunity
did not
the
testimony
if
Even
such
would not
in
testimony
experts
the
of
endo-
sider[]
a le-
culpability
diminished Belmontes’s
as
and
who could have
crinology
toxicology”
matter,
him
gal
it would have humanized
the
of the defendant’s
explained
impact
eyes
jurors
in the
them
of the
and allowed
of drugs);
with diabetes and use
struggle
deserving
him
an
of
to view
as
individual
(finding preju-
however, any gang is Belmontes’s denial of evidence, aggravating including the cir- involvement and his mother’s claim Bel- crime, of the as cumstances "scant.” Angels montes knew members of the Black area, gang they lived because in the but that quotation 22. The dissent’s of the California gang. According he was anot member of the Supreme slightly Court’s decision mislead- friend, to Belmontes’s childhood ing. The court described the circumstances part "junior gang” was loosely of affiliated "overwhelming” crime as when it was Angels, with the "gang’s” Black but this activ- analyzing prejudiced whether anything ities did not amount to than more by aggravating the erroneous admission pranks. harmless As the dissent acknowl- edges, "gang likely slapped evidence that on one occasion affiliation” explained by peer pressure can be carrying gun. combined side to indicate that he was
871
(9th Cir.1999) (finding
1118
such conduct
argument,
own
the State’s
887-88. Under
by
prejudicial
be
even
counsel could
however,
conceivably significant
only
and killed
though the defendant stalked
factor is the circumstances
aggravating
killing two
people
two
and shot without
all
are
itself.
murders
the murder
While
Bean,
at
night);
others
163 F.3d
the same
Belmontes’s crime
degree,
heinous to some
1075-76, 1081,
by
(finding such conduct
ordinarily
as
leads to the
not such
defen-
prejudicial
though
counsel
even
capital punishment,
at least
imposition
middle-aged
one
dant beat to death
mitigating cir-
significant
there are
where
them);
to rob
elderly
one
woman
order
here did not in-
crime
cumstances.
1035,
Calderon,
v.
F.3d
Hendricks
torture,
victims,
multiple
sexual sad-
volve
(9th Cir.1995) (finding
such conduct
ism,
suffering
part
on the
or needless
by
though
even
defen-
prejudicial
counsel
mur-
compared with the
the victim. When
men
shooting
two
dant was convicted
many of
ders in
the cases which we
and,
paid him to have sex with them
who
prejudiced
that the defendant was
held
heard
rebuttal
adequately
investi-
his counsel’s failure
during
phase, was never
penalty
present mitigating
gate
others).23
charged
murdering three
phase,
circumstances of the
*35
Thus, given
of Bel-
the circumstances
hardly
in this case can
be character-
crime
the
total ab-
montes’s crime and
almost
See,
overwhelming.”
e.g.,
“simply
ized as
any
aggravation,
sence of
other evidence in
Cornell,
(finding
jury’s question,
majority
“Can
rule on
that the mitigation
pre-
evidence that was
imprisonment?” suggests
life
that at that
“substantial,”
sented was
we held that
deliberation,
point
ju
number of
there was additional evidence that could
rors
toward life
leaning
imprison
were
added).
and should have been offered to humanize
(emphasis
ment.
Had counsel bet
Mayfield. Mayfield struggled
ter
with
prepared
testify,
the witnesses to
diabe-
with the
tes as a
been
addition
child and
he was
when
seventeen
al
died,
should have
grandmother
his mother moved
introduced,
significance
been
and had the
family,
hospi-
and his diabetes-related
explained
that evidence been
talizations
Id. at
increased.
931. These
jury,
probability
there
ais
reasonable
“stressors”
drugs
led him
abuse
all,
if
jurors,
at least some
would have
alcohol and
wrong
associate
persuaded
been
that life without
possi
crowd.
According
of his
bility
death,
than
parole,
rather
was the
family and
the evidentiary
friends at
hear-
appropriate penalty in this case. May
Cf.
ing, Mayfield
a supportive, gen-
was once
*36
field,
(finding prejudice
Moreover, delib- the nature of the intent rather than with one was there in this case re- Mayfield and erations circum- aggravating to kill.25 The other of the verdicts. the tenuousness veal the de- Mayfield present stances hours, deliberating for four after Mayfield, —that *37 gun at the and fired once carried fendant the question to a written jury the sent he had and that ex-girlfriend, of one home read, jurors all 12 “Must judge, which ex- another physically abused previously pa- of life without the sentence agree different significantly ju- girlfriend “All judge responded: Id. The role?” —are crime without confed- Indeed, May- Mayfield committed his aggravating evidence in erates, culpability di- possible is stronger Belmontes's than all of whereas was field State could evidence that influence of his aggravating by presence and minished Belmontes, including the against put have Although we hold that there accomplices. Mayfield, there In Jerry Howard murder. should mitigating evidence that was sufficient were strong that the murders evidence alone, that, standing been introduced out, advance, coolly carried planned in finding prejudice, without would warrant present vengeance. case by motivated could, any evidence that introduction of planning advance evidence of there was implausible, any theory, plausible or under unexpect- happened robbery, murder but the introduction of open the door to the serve surprised Belmontes and victim edly after the evidence, Mayfield Jerry Howard murder had no advance his confederates. would, cases cited a number of other like Mayfield was con- kill McConnell. motive to text, preju- compel finding supra in the killing people. Belmontes was two victed of were Jerry Howard dice even if the alleged person killing one convicted admitted. incident. in an unrelated have killed a second than aggravating Strickland, the other circumstances 694, 104 466 U.S. at S.Ct. 2052. present here. Additionally, Mayfield Accordingly, we hold that the district court we found evidence that erred in finding that Belmontes was not actually counsel had introduced to be “sub- prejudiced by counsel’s perform deficient Here, contrast, stantial.” by mitigat- ance.
ing evidence Schick at trial was Accordingly,
insubstantial. we conclude c. Additional Prejudice Basis for Mayfield controlling and that under argues that there is an ad- reasoning, its Belmontes is entitled to re- ditional reason he prejudiced by lief on his ineffective assistance of counsel Schick’s performance: deficient Schick’s claim. failure to offer testimony with re- spect to prospects for insti- v. Summary adjustment. tutional Specifically, Bel- Because the substantial mitigating evi- montes asserts that Schick could have dence that counsel failed to uncover and testimony introduced the Yates, of Dr. present to the would highly have been who would have testified that “in a situ- Belmontes, beneficial to because counsel’s ation of high structure and reasonable failure to adequately prepare the witnesses support” prison “would —i.e. —Belmontes who testify did rendered their be a low risk for violent behavior.” Bel- little value and sometimes counterproduc- montes also asserts that Schick could tive, because counsel failed his closing similar, have elicited and perhaps even argument to explain perti- more powerful testimony from a witness nence of the minimal mitigating evidence Enomoto, such as Gerald the former Di- that was urged adduced and instead rector of the California Department of jurors to return prison a verdict of life Corrections and current United States for the reason that it pun- was a harsher Marshal for the Eastern District of Cali- ishment sentence, than a death because fornia. Enomoto’s deposition states that the aggravating evidence introduced at that, he would have testified despite the “scant,” sentencing was because the cir- presence of some negative reports from (the cumstances of only Belmontes’s crime members, CYA staff as a whole the re- aggravating factor the State even contends ports Belmontes’s CYA file show a substantial) to be egregious were far less clear improvement trend of positive than those in a number of cases which adjustment. Dr. Missett could also have we have held that deficient performances testified in his opinion, Belmontes prejudiced defendants, counsel because “would have an extraordinarily high like- *38 the evidence counsel failed present to good lihood of a institutional and nonviol- would have humanized Belmontes in the adjustment ent prison to a setting.” eyes jury, of the and because the duration jury’s of the It is to point that ques- deliberations and the the State’s brief is primarily tions it asked the judge plain make that in addressed. The argument State’s the minds of at jurors respect why least some of to the the failure to offer this this was a type close expert case which their testimony verdict prejudi- was not was uncertain cial during portion presented de- had Schick such liberations, evidence, we that conclude Belmontes he would have opened the door has established far more than is required prosecution for the to introduce evidence to ... “undermine[ ] confidence the out- that actually Belmontes committed a delib- come” of the penalty phase verdict. See Jerry erate murder of Howard rather than
875 whether as accessory expert the fact to not consider as an after acted ability adjust to a struc- manslaughter. The State as- voluntary would, fact, have tured environment the evidence been serts that had Howard the door to evidence. opened the Howard introduced, would aggravating factors we his counsel Nor need consider what “overwhelming.” from “scant” to gone have might respect not might or have done with court’s the trial The State does contest testimony had to the introduction of such was that the Howard evidence ruling judge the trial indicated that such would general (except matter for barred as ruling.27 be his “ac- fact of Belmontes’s conviction of bare voluntary after the fact” to man- cessory believe, however, if that even We argues that it would slaughter), only but admitted, evidence Bel- Howard were regard- full facts be free to introduce the by prejudiced montes would still have been role in in connec- ing his actual the crime deficient at representation Schick’s any of with its cross-examination of tion phase aggrava- of his trial. The witnesses testified that he expert who evidence, even ting with the addition It had a non-violent character. contends that How- evidence Belmontes murdered that if testified specifically any experts ard, strong enough, light is not prospects regarding Belmontes’s favorable evidence have been that could in a behaving in a manner non-violent adduced, rule out of life a sentence environment, prosecution structured Many capital our prison. cases in which attempt right have had the would petitioners claimed ineffective assistance of guilty Belmontes of murder- show that was and we multiple counsel involved murders Jerry a more violent ing Howard found prejudice nevertheless because may person than witnesses present failure to sufficient miti- counsel’s Because we have held above thought.26 See, Correll, e.g., evidence. 465 gating a) has that that demonstrated (involving at 1015 three murders and F.3d prejudiced deficient murder); Schick’s attempted Mayfield, failed one performance because of failure to call 920-21, two (involving at 270 F.3d 932 murder); and that he is entitled to lay witnesses and one attempted murders basis Wallace, 1113, have his sentence set aside on that (involving at 184 F.3d 1118 b) murders); he is also to a rever- alone and entitled attempted murders and two two Bean, 1075-76, (involving of his counsel’s sal of his sentence because at 163 F.3d testify murders); Hendricks, expert failure to call witnesses to 70 F.3d at two Cir.1995) (9th childhood two murders (involving to the effect various additional experienced have had rebuttal evidence of three traumas he would murders). child, need Had the heard the an otherwise normal we upon claims, concede, prosecu- dissent seems 27. We do not as the 26. The dissent certain that prove Bel- have been able to tion would the additional of Belmontes's Op. actually Dis. montes killed Howard. past would admissible if violent have been Additionally, thoroughly describ- after institu- evidence of ing prosecution prof- the evidence *39 adjustment. Op. at 882. It is far tional Dis. fered, curiously the dissent declares that judge that trial would have from clear deny this ev- does not the truth of "Belmontes any ruling that if he had done issued such or Op. at Belmontes has had idence." Dis. 880 so, proceed- attorney Belmontes’s would have deny to admit or the truth of no occasion evidence. See ed to introduce additional because, despite repeated evidence the State's supra. at n. 20 discussion attempts, evidence held to be was never admissible. 876
testimony regarding introduced, the childhood traumas dence that counsel should have good-na- that turned Belmontes from a might well persuaded have at least one troubled, in- drug-using tured child into juror to vote in favor of life pa- without conduct, dividual in criminal engaged role, notwithstanding the introduction of humanizing explanation evidence the Howard evidence.
for
change
personality might
well
juror
persuaded
at least one
to vote C. Evidence of Prior Criminal Miscon-
prison
for life in
whether he had commit-
duct
ted
already
one murder or two. We have
argues
that he
deprived
“was
held that
deficient performance
counsel’s
process by
of due
ag-
the introduction of
prejudicial
jurors
where the
knew of
gravating evidence at the penalty phase,
only one
presume
murder: We cannot
suggested
which
activity,
criminal
but
it
non-prejudicial
would be rendered
sim-
previously
adjudicat-
which has never
been
ply
they
because
were
of a
informed
sec-
ed.” We have previously held that consid-
ond.
unadjudicated
eration of
criminal conduct
Our colleague
por-
devotes a substantial
purposes
for
sentencing
does not violate
tion of
his dissent
issue of the
defendant’s
process
constitutional due
evidence,
Howard murder
as did the State
rights.
Ibarra,
See United States v.
appeal. However,
because we base our
(9th Cir.1984).
825,
F.2d
decision on Schick’s failure to effectively
present humanizing lay witness testimony,
brief,
In his supplemental
Belmontes ar-
it
undisputed
is
such
gues that he is now entitled to relief under
open
would not
the door to the Howard Cunningham
California,
270,
v.
549 U.S.
evidence,
murder
arguments
the dissent’s
(2007).
856,
127 S.Ct.
The district court held “the Califor- made, together letter in which it was Supreme nia Court’s conclusion that that it explanation court’s credible “was required impar- trial court did render the therapeutic purpose made for [a] more judgment tial is entitled to deference as a ... legal purpose,’ than a defendant [the] presumably pursuant finding,” factual judge has not established that the trial 2254(d). § the former version of 28 U.S.C. ultimately ‘independent failed to make the respecting appropriate- determination’ argues the California Accordingly, ness verdict.” determination that Supreme Court’s rejection we affirm the district court’s 190.4(e) § judge prejudge trial did not this claim. finding factual motion is not a entitled to deference, rather a determination re- but III. CONCLUSION question of law fact.
garding a mixed reject argument. We Whether or not We affirm the district ruling court’s judge up prior had made his mind representa- Belmontes received deficient considering Belmontes’s memorandum of trial, penalty phase tion at the of his but points support and authorities of his ruling set aside its that he suffered no 190.4(e) § is not a question, motion mixed prejudice as a result. We hold that coun- pure question but is instead a of fact. failure adequate lay sel’s to introduce wit- testimony regarding ness argues that Belmontes also the Califor- experiences childhood and his Supreme finding nia Court’s is not entitled failure to explain consequences the court to the deference because “conducted hearing no nor did it have a referee con- minimal evidence he did intro- any hearing regarding duct the trial duce was prejudicial, especially light Rather, court’s conduct. the trial court aggravating scant evidence and the uncertainty reviewed the statements made simply [sic] indicated about the impose. on the the trial court after de- sentence it should record We also hold complained fense counsel about the letter that counsel’s failure to introduce jurors testify relationship and reached a conclusion that witnesses to
879
by
components
purchasing
stereo
for
traumas suffered
type of childhood
the
$100—
conduct,
portion
proceeds.
with a
of the
criminal
and
beer
to future
mitigating expert
important
to offer
thus
Belmontes,
744,
v.
45 Cal.3d
248
People
pro-
and thus
prejudicial
(1988).
126,
310,
Cal.Rptr.
755 P.2d
354
independent basis for
separate
vides a
penalty phase
In the
of his trial
state
reversal,
light
again especially
court,
the
considered the circum-
to above. Accord-
circumstances referred
and the
stances of Belmontes’s crime
other
court with
remand to the district
ingly, we
evidence,
aggravating
balanced the evi-
writ
grant
petition
the
for
instructions
factors,
against
mitigating
dence
and to return the case to
corpus
of habeas
to death.1
sentenced Belmontes
Unani-
County Superior Court to
Joaquin
the San
conviction
mously affirming Belmontes’s
to life with-
reduce Belmontes’s sentence
sentence,
Supreme
the California
a new
parole,
pursues
unless the State
out
properly
ag-
stated: “The
admitted
Court
within a reasonable
sentencing proceeding
particu-
evidence in this case—in
gravating
time,
by
determined
the dis-
amount of
lar,
crime—was
the circumstances
trict court.
809,
at
simply overwhelming.”2 Id.
248
and REMANDED.
REVERSED
(citation
Cal.Rptr.
[Fernando Belmontes]
Re-
extremely
that he com- of ineffective assistance of counsel.
strong evidence
characterizing
aggravating
evidence as
intentional murder of extraor-
mitted an
“minimal,”
majority
claims that Bel-
dinary
brutality.
bludgeoned
He
prejudiced by his counsel’s
with an iron dumb- montes was
McConnell to death
mitigat-
bar;
present
failure to
certain available
bell
the force of the 15 to
some-
aggra-
to counterbalance the
leaving
gaping
ing
her with
evidence
odd blows
presented by the state.
vating
a cracked skull. Her defen-
evidence
wounds and
Maj.
majority
also con-
desper-
Op.
evidenced a
840.
plainly
sive wounds
that Belmontes’s counsel failed to
for
life at defendant’s
cludes
struggle
ate
wit-
prepare adequately
phase
hands. The murder occurred
prejudice,
In order to discern
burglarize
a calculated
nesses.
plan
course of
home;
evi-
majority overstates
the victim’s
to which defendant
dence,
properly
admitted
entry
pretenses.
false
understates
gained
evidence,
murder,
ignores the fur-
aggravating
and his ac-
After the
defendant
aggravating
ther
would
complices callously fenced the victim’s
defect,
(h)
requires
the defendant's mental disease or
law
the trier of fact to
1. California
penalty phase,
(i)
eleven factors in the
consider
the defen-
the effects of
or
intoxication
(a)
they
insofar as
are relevant:
circum-
role,
age, (j)
dant’s
the defendant’s minor
crime,
use,
(b) the
stances of the
defendant’s
(k) "[a]ny
circumstance
extenu-
other
which
use,
force, (c)
attempted
the de-
or threat of
though
gravity
even
it is
ates the
of the crime
convictions, (d)
prior felony
the de-
fendant’s
legal
Cal.Penal
excuse for the crime.”
emotional dis-
fendant’s extreme mental or
§
Code 190.3.
turbance,
(e)
participation
victim’s
consent, (f)
belief
the defendant’s reasonable
Belmontes,
Appellate
in con-
counsel
justified
morally
were
or ex-
that his actions
trast,
"objectively low on
considers the crime
tenuated, (g)
extreme duress
the defendant's
person,
the scale of heinousness.”
domination
another
or substantial
respect, majority ignores
With all due
the devastating aggrava-
come in on rebuttal.
ting
I
evidence that would have
admit-
must dissent.
been
ted on rebuttal.
I
particular,
prosecution
would
*43
A
have shown that Belmontes had murdered
Jerry
body
Howard in 1979. Howard’s
an ineffective assistance of
prevail
To
secluded,
was found in a
semi-rural area.
claim,
petitioner
must demon
counsel
He had been
executed with
bullet to the
performance
strate that his counsel’s
parole
back of the head. A
report pre-
prejudicial.
both deficient
Strickland
11, 1979,
pared for
May
Belmontes on
668, 693,
Washington,
v.
466 U.S.
104 S.Ct.
remarked that “the
method
which the
(1984).
2052,
L.Ed.2d 674
court
“[A]
80
murder was carried out
plan-
indicate[d]
per
need not determine whether counsel’s
ning, sophistication,
premeditation.”
examining
formance was deficient before
strong
Witness
offered
prejudice
by the defendant as
the
suffered
However,
against Belmontes.
“because of
alleged
If it
a result of the
deficiencies....
lack
cooperation
part
on the
dispose
is easier to
of an ineffectiveness
witnesses, [Belmontes] could not be tried
ground
claim on the
of lack of sufficient
Still,
police
prove
for murder.”3
the
could
so,
prejudice,
expect
which we
will often be
possessed
gun
Belmontes
the
used to
that course should be followed.” Id. at
Howard,
kill
agreed
plead
so
Belmontes
697,
Prejudice
only
The or im- the Howard evidence for rebuttal these witnesses ready present peachment. criminal his- evidence of Belmontes’s other However, granted
tory. the court Schick’s deposed, Schick confirmed When later testimony to limit the extent of motion to had him given that the Howard evidence after accessory the crime of conviction: and that he had struc- “grave concerns” voluntary manslaughter. the fact to arguments tured his and witnesses aware, however, that parties were Both He told habeas coun- avoid its admission.6 Howard might court admit the the trial had intended to prosecution that the sel as to purposes, for other such Donaldson, have who would call Detective testimony of character impeach or to rebut in the “cold-blooded fashion” testified to See Cal. Evid. witnesses for the defense. had been killed. When which Howard 1102(b) (permitting prosecu- § Code he believed such evidence asked whether evidence, including to use character tion “devastating,” said: “Cer- would be Schick acts, evidence adduced prior bad “to rebut tainly.” defendant”). transcript trial by the The But, argues that Belmontes now the risk cross-examination substantiates ev- not have allowed the trial court would point, At one posed to the defense. im- it was not relevant to idence because inadvertently elicited tes- attorney defense Bel- testimony regarding peach expert Robert timony from Belmontes’s friend in an for nonviolence prospects montes’s a violent that Belmontes was not Martinez state ex- Yet for mental institution. hearing jury, Outside the person. had to determine whether Belmontes pert defense counsel prosecutor informed when toward violence proclivity a lesser intended “to cross- and the court that he have needed to supervised, she would fully about his knowl- examine [Martinez] Ontario, California, gang Angels in report it the Black parole the final before board Jerry The and that he murdered Howard. granted Belmontes’s release. prosecution exten- had record shows the witness’s that he would test up allegations. 5. He stated back these sive files to man, young knowledge the facts that as a expect- stated that he “would attempted police offi- 6. Schick to seize arrest, "[s]pecific prosecutor introduce ed” the gun during that he carried a an cer’s testimony expert to rebut having facts of the case” gun he was trouble to school because schoolmates, propensity for violence. about Belmontes's that he was a member of behavior both institutional admissible to the other compare his rebut evidence as well.9 settings. and noninstitutional majority states that “Schick should Moreover, the manner which Bel- have offered the of a psycholo- would have montes killed Howard been gist psychiatrist effectively or in order prospects relevant to his institutional di- explain day-to-day terms the rectly, aspects it manifested insofar as practical impact on an individual of the personality. supported The defense its experi- kind of traumas claim that Belmontes would be nonviolent Maj. enced as a child and adolescent.” prison well-respect- that a with evidence so, Op. at 868. Had Schick done pros- suggested that he psychological ed test7 ecution could have cross-examined such of a “conformer.” personality had the To expert opinion. as to the basis for her expert’s interpretation rebut an of that provides California law “a witness tes- test, prosecutor could have asked tifying expert may as an be crossexamined whether the was aware that Bel- to the same extent as other witness leadership montes had taken a role in the and, addition, may fully be cross-exam- Jerry helped murder of Howard (1) (2) qualifications, ined as to his or her *45 gang establish a Chicano while incarcerat- subject expert to which his or her tes- aggressive an suggested per- ed—acts that (3) relates, timony upon the matter sonality and undermined the claim that he opinion which his or her is based conforming rule-abiding would be a opinion.” reasons his or her Cal. inmate.8 721(a) added). § (emphasis Evid.Code If placed had expert Schick the stand an “explain[] to the extent to which [Bel- B problems montes’s can childhood] cause or change contribute to individuals that majority analysis its in an bifurcates conduct,” subsequent can lead to criminal attempt to avoid the minefield of Bel- Maj. Op. at expert would have history. montes’s criminal While it con- to know needed the criminal conduct in acts, that violent might cedes Belmontes’s engaged. which Belmontes had The How- be admissible if Belmontes asserted a like- ard murder evidence would have been ad- prison adjustment, lihood of nonviolent it missible to show the basis for expert’s to that issue on declines consider opinion expert’s or to reveal the failure ground that the other consider relevant acts in Belmontes’s his- prejudice. ap- suffices to establish This tory. proach simply majority leads the into a
neighboring minefield: the circumstances The Howard evidence would also have question of the Howard murder would have been expert testimony been relevant parties’ experts they argued 7. Both testified that con- 9.As Belmontes in his amended habe- test, test, a sidered this the "Jesness" valuable petition as before the district court: "More- one. over, paramount importance, and of the same mitigates mental state evidence which his role diag- 8. Dr. Yates testified that if she were to provided in the offense itself would have gath- nose based on the evidence compelling presentation regarding con- future purposes, ered for would deem habeas she given duct if a life sentence rather than the aggressive him to have a "socialized disor- penalty.” (emphasis original.) death der,” [his] based on "evidence of social at- "repetitive pattern physi- tachments” and cal violence and thefts.” time which related to this 1979 homicide of state at the to Belmontes’s mental as majority Because, said, as- murder. The I it Jerry of McConnell’s Howard. “[b]y the time of McConnell’s serts very clear to me that what [the than then-[Bel- murder-indeed earlier retry prosecutor] wanted do was marijuana, regularly using montes] case, all the evidence before the put heroin, LSD, drugs.” The PCP and other jury. have been rele- Howard evidence would prosecutor’s damag- noted that the Schick to rebut insinuation
vant ing compounded evidence was any way affect- murder was McConnell drug use.10 Dr. Yates ed [by] the statement Donald- [Detective expert opined that an could have explained investigator] made to defense son] [the per- Belmontes had “an antisocial whether ... that it was his view that Mr. Bel- a con- sonality simply [was] disorder or in a killing montes had done that in 1979 special under formist individual who was cold-blooded fashion. And what [the expert time.” If the stress at the explain prosecution] wanted to do was that Belmontes lost control suggested ... and at the conclu- point of view drugs impulses of his due awareness get up say, it sion of alcohol, could have the Howard evidence “Here a man who has been convicted that Belmontes committed a simi- shown not once but twice of murder.” That’s larly murder without such “cold-blooded” .... get- whole different kettle of fish influences. your yes, I was ting question, back to Therefore, prejudice, leading far from my That was concern. concerned. mental-state evi- the omission *46 devastating dence saved Belmontes from As Schick ex-
cross-examination evidence. C plained: precedent recognizes that counsel’s Our that the amount apparent
[I]t bec[ame] opening concern for the door to rebuttal trying prosecution of evidence the was assistance can defeat a claim of ineffective trial, in to introduce should Kincheloe, Campbell In R. v. of counsel. there, leaps in get growing we (9th Cir.1987), F.2d 1453 counsel 829 prior [Belmontes’s bounds [sic ].... evidence, mitigating yet no we my in were somewhat small convictions] factors, all of that omission: mind next to the other defended drugs help cope with making that he used "to majority that it is not shows 10. The states life,” finding, inappropriate appellate at the factual unpleasant circumstances of his level, to whether Belmontes was influenced to the crime without some sort of connection Maj. Op. by drug at 865-66 n. 18. Addi- use. "major personality change,” com itself or tionally, "the district court did it states that Stewart, pare v. 140 F.3d Smith humanizing evidence about Bel- not hold that 1998), (9th mitigating evidence is of Cir. such history abuse before montes's of substance relevance, perhaps little open the door to the crime would likewise (explaining Maj. Op. at 852-53 all. See aggravating additional evidence.” Id. How- significant be lack of ever, I am at a loss as to how Belmontes’s "expert make there was no who could cause drug humanizing without some use would be various themes in connections between commission of a reference to its effect on his explain jury how mitigation case and adjust ability cruel and brutal crime or his they have contributed to Belmontes's could being danger prison to oth- life without activity” (emphasis involvement in criminal argues Although majority ers. added)). humanizing drug because it use evidence already “simply were shows that the state was stances of the crime The record array ag- present overwhelming.” a vast prepared rebuttal, including in gravating evidence Furthermore, majority’s attempt rape Campbell’s ex-wife. the forcible evidence re- avoid the issue of rebuttal limiting ... the choice of Faced with quires ignore mitigating it to also relatively presentation tame state to himself crucial: that Belmontes deemed convictions, prior poten- Campbell’s evidence that Belmontes would be non- devastating tially opening the door to in prison. violent As Belmontes stated evidence, Campbell’s counsel rebuttal petition habeas in the district amended by electing not to chose the former route court: In one of present mitigating evidence. that a rational Common sense tells us words, attorney’s “[presentation jury extremely will be reluctant my items in mind [mitigating] those a life sentence if it would be award bring parade would forth a of horribles kill exploited as a license to assault or my opinion bury would so far contrast, again. In a life sentence be- mitigation those factors palatable comes far more to a which saving chance we had of his life would satisfy primary can their interest re- have been lost.” moving open society the defendant from added). (emphasis Id. at 1462 We noted certainty with some that he will not Belmontes, defendant, that the like replicate prison violent offenses soci- potential that some of his concede[d] ety. have been mitigating evidence would the gruesome the face of circumstances evidence from strong met with rebuttal already-admitted of the crime and the evi- state, speculated] but he that evi- acts, prior dence of Belmontes’s violent “background, dence of his childhood and certainty would not have had such family relationships,” possibly evi- unless evidence of his Schick introduced abuse, upbringing dence of his “child potential. non-violent un- Because was abuse,” drug pre- could have been opening able to do so without the door to opening sented without the door to re- evidence, devastating rebuttal the omission *47 buttal evidence. prejudicial. of such evidence was not Still, “Even if prejudice: Id. we found no ease, agree this is the we with the district II ‘given overwhelming aggra- court that the A factors,’ vating] and ‘the heinous nature of crime,’ there is no reasonable likeli- mitigating The effect of the omitted evi- jury’s hood that verdict would have dence would not have created reasonable mitigating been different had the evidence First, probability altering of the sentence. been introduced.” Id. one must distinguish between evidence Kincheloe,
Here, already presented, state was was and evidence array ag- majority that was prepared present to vast never admitted. The rebuttal, two, including intermingles gravating leaving impres- execution-style sion that Belmontes’s murder of Schick omitted evi- Howard, history drug dealing, presented jury. his dence that he in fact to his participation example, conflicts and his For Schick numerous police, with in gang penalty phase activities. Even without that fur- witnesses to “humanize” evidence, aggravating despite ther the circum- Belmontes and to show could re- need an to understand that these background, Belmontes difficult experiences negative impact called to the stand had a late to others.11 He Bel- mother, grandfather, his Belmontes’s montes. Martinez, Rev. Darlene and Robert
friends Pine Grove (chaplain Barrett CYA Dale B (members of Rev. Bar- Facility), the Haros prejudiced by Nor was Belmontes (assistant church), and Don Miller rett’s expert testimony lack of about his rheu- Facility). at the Preston chaplain CYA matic Dr. Yates characterized that fever. majority considers mild,” rather than “pretty “sig- illness as little value com- these witnesses to be of nificantly debilitating,” majority as the as- testimony that could pared to the Schick “[ajctually, it serts. She clarified that majori- In presented. particular, expected early, the mother that him to die ty objects point no did Schick “[a]t didn’t.” Accord- but[Belmontes himself] experiences mention of the traumatic Yates, ing very to Dr. the illness “wasn’t during that Belmontes underwent his severe, arthritis, it was associated with [ ] youth,” thereby “failfing] childhood anything more but not with ominous and experi- how those explain had a probably shouldn’t have home Belmontes; what the rela- ences affected similarly Dr. teacher.”13 Missett stated tragic events and tionship was between that Belmontes “did not face an illness conduct; criminal subsequent Belmontes’s going to result in imminent why should consider those death.” determining circumstances in whether Bel- diagnosed an individual who should be Belmontes never was with montes was fact, depressional life be disorder. Dr. put to death or whose should Yates Maj. inappro- But it would have been spared.” Op. at 846-47. stated Belmontes with a de- majority give proper emphasis priate diagnose fails to disorder, attributing un- pressional the fact that several witnesses testified on “a spoke happiness during home-schooling mother those issues: Belmontes’s her, just ... depression, father used to beat situational which how Belmontes’s arm, breaking good and another time means that it’s not a situation and once her good like it and doesn’t feel stabbing her and of how Belmontes suf- he doesn’t that cer- departure opined of her second about it.” Dr. Missett fered from the tain in Belmontes’s childhood cor- husband and became “difficult to control.” events “symptomatic” a form responded described how his grandfather example, For he remarked grandmother, depression. cared for his visit- grandson believed every day hospital was] in the and that be ing “[i]f [Belmontes her *48 infant jury sister’s] The did not about his visits attending [his her funeral. goals noted that he was sure explained that four in the 12. Dr. Missett also not 11.Schick (1) mother, Belmontes, penalty phase were to "humanize” Mr. or his believed whether (2) jury; for the to show that he age that Belmontes would die before prisoner that he would not be a difficult and good relationships people; could form no reason "s[aw] 13. She also noted she (3) background so that to show his impaired go why that he couldn’t he was so like; it would know what his life had been may speculated and that "it school” (4) lingering and to raise doubt whether Bel- any coming more from the mother than been really by offering the actual killer montes was necessity].” [medical agreement testify Vasquez’s for evidence of lighter prosecution sentence. to obtain been an indication status at the time of the incident [murder this would have grave, of He stated that Belmontes McConnell].” early essentially depres- childhood of an high drugs shortly claimed to have been on “descrip- stated that sion.” And he crime, yet “recounting before liking not school and tion [Belmontes] of leading up events to this murder of it getting much out feeling of very, very detailed” —a detailed de- having with his consistent [to be] scription person inconsistent with a whose depression.” childhood symptomatic by drugs.15 actions were influenced More- depression causes for triggering Those over, way in which the crime was reason to believe the de- offered little planned and fore- committed indicates debilitating. was serious pression thought and control: Belmontes armed hand, sug- Dr. Missett did On the other put himself with metal bar and gest sickness as child that Belmontes’s crime, gloves16; after the Belmontes had drugs: later might have led to his use lucidity bloody weapon to discard the appears to have drug “Belmontes’s abuse in a river. immediately during had its onset after Dr. thought Yates that the evidence of period repeated- of time that he was so Belmontes’s mental state at the time of the ly opined ill.” He that Bel- physically way. crime could cut either On the one might drugs have used as a form montes hand, preparation his careful and execu- Although this evi- “self-medication.”. suggested tion of the crime that he re- might pity dence have led the tained self control and that his brutal act Belmontes, prosecutor could have representative general personal- of his damaging evidence on crossex- brought hand, ity. On the other Belmontes “could example, prosecutor amination. For very impulsive have been at times.” If he queried of such whether could have substances,” were “under the influence of to deal depression also induced Belmontes remarked, anger Dr. Yates could “[h]is That drugs. and to distribute rebuttal through, though have broken even it undercut evidence would have Schick’s ef- ordinary way acting wasn’t his and feel- drug-relat- to transform Belmontes’s forts ing thinking, he could have done some- sympathy.14 ed into a cause for conduct added). thing (emphasis that was horrible.” prosecution impeached could have C testimony regarding such Belmontes’s “or- drug use would not have dinary way acting feeling weight much to humanize him carried thinking,” opinion and asked whether that majority suggest. would When de- took into account the fact that Belmontes posed purposes, trial for habeas Schick’s had killed Howard without expert, Cavanaugh, mental-state Dr. drug Again, any or alcohol intoxication. opined culpability that Belmontes had a “clear mental effort to lessen Belmontes’s 1, 1979, murder, police report 14.A dated March de- committed at one least and had shot scribed how surveillance officers witnessed people on two different occasions. give two balloons of heroin to the confidential informant. After Belmontes accuracy 15. Other witnesses corroborated the parted company with the confidential infor- *49 description. of Belmontes’s detailed mant, gave the informant the officers the her- promised oin. He told them that he had 16. Belmontes himself told Dr. Yates about the (heroin try injection para- to find an "outfit” gloves, always which he stated he wore "do phernalia) for Belmontes and that Belmontes job.” a armed, had warned had him that he was harm, chological opined or Dr. Missett that crime would have either been weak inability job to hold a “father’s even counterproductive. poverty,” ] face caused Belmontes [ D clear, It a “level of shame.” is not howev- er, much that how “shame” affected Bel- If had offered Schick or relationships, montes his for his sister experi- that Belmontes’s childhood to show noted that he “had lots of friends.” ability harmed his to interact with ences others, testimony would have led to such Having painted Belmontes’s childhood in example, For similar rebuttal evidence. possible light, majority the darkest grandfa- Belmontes’s Dr. Missett stated attempts poverty to cite sickness and anti-Latino to- expressed ther sentiments family why troubles as the reason he be- father, causing Belmontes’s Bel- ward came a violent murderer. majority The “inferiority a and lower montes sense that *50 majority Mayfield
E the facts in near deems bar, ly only to those at two identical effect of Belmontes’s The cumulative significant Mayfield, differences: experiences would have offered childhood aggravating “strong” evidence was and the “overwhelming” evi- antidote to the little mitigating evidence introduced was “sub drug traffick- of Belmontes’s later dence stantial”; that the here the state conceded on gangs, assault ing, involvement aggravating evidence was “scant” and the pregnant, girlfriend while she mitigating evidence introduced was “insub failure to offer multiple murders. Schick’s Maj. Op. majority’s stantial.” at 872. The testimony Belmontes’s child- further about respect strength statement with to the prejudicial. was not experiences hood aggravating evidence distorts ignorant jury Even if the remained reference, which state’s characterized murder, aggravating chilling Howard aggravating evidence other than the cir presented overwhelmed ben- cir cumstances the crime.17 When the mitigating evidence. efit of the omitted of the crime were cumstances considered jury forgotten Bel- The would not context, prosecutor made clear that brutality, by autop- montes’s evidenced appropriate. the death mangled head. sy photos of McConnell’s jury recalled Belmontes’s The would have Moreover, deficiency Mayfield’s and his friends left testimony that he clearly counsel was marked and conse- bloody body and drove to a McConnell’s quential. Mayfield’s spent only counsel place they belongings could sell her where open- hours on the entire trial and waived buy The still would have beer. ing argument penalty phase. May- why, even in explanation had no alleged field that he had been influenced address, expressed no closing offense, by drugs at the time of the but his remorse. “mistakenly stipulated counsel [his] negative day urine tested for PCP the
Ill
crime, indicating
after the
to the
both
Mayfield
did not have a substance
A
Mayfield
problem
abuse
had lied
claim,
Contrary
majority’s
neither
lawyer
only
about it.” Id. The
called
one
(9th
Woodford,
Mayfield v.
Even more
showing
prejudice.
we distin-
There was no “rea-
guished
Mayfield
the facts in
probability
from the
sonable
but for counsel’s
errors,
situation where
unprofessional
new
the result of the
open
would
the door to
aggrava-
proceeding
additional
would have been different.”
ting
Strickland,
Specifically,
694,
evidence.
we cited the
ship. Rev. Barrett religious commit-
described the sincere during made his CYA in-
ment Belmontes Finally, had testified
carceration. Miller ability positive make a *54 in prison.26 while
contribution allowing majority faults Schick for they believed
the witnesses to state Although such was innocent. QUON; Florio; Jerilyn April verdict, jury’s guilty view contradicted Quon; Trujillo, Jeff Steve from stop failure to the witnesses Schick’s Plaintiffs-Appellants, objectionable. In testifying was not so fact, miti- testimony may have had a v. effect, it allowed Schick to gating because character evidence indi- present positive OPERATING COM ARCH WIRELESS a rectly, opening without the door to dam- INCORPORATED, PANY, a Dela imagine hard to aging rebuttal. It is City Ontario, corporation; ware of that Belmontes implication the witnesses’s Lloyd Scharf, municipal corporation; normally person preju- a violent not individually and as Chief of Ontario leniency. hope diced Department; Police Ontario Police Glenn, Department; individu Debbie Y ally Sergeant Po and as of Ontario Department, Defendants-Appel time, majority lice the third has For lees. Belmontes habeas relief without granted erroneously argues majority’s analysis as- that the mother should 26. The
25. Belmontes
testimony required
sumes that the witnesses'
“photographs of [Bel-
have been shown
explanation: "Although Schick stated in his
actually
positive activities
involved in
montes]
deposition that
themes at the
one of his four
youth,
identify and
asked]
as a
[been
penalty phase
capacity to
was Belmontes’s
jury.” But
describe the contents for the
adjust
prison,
argue
well to
he failed to
enjoys
making
"wide latitude ...
counsel
import
any
such was the
decisions,”
selecting
such as
which
tactical
Maj.
testify.”
the witnesses he had called to
compel-
present to
the most
evidence to
make
Op. at
much what the witnesses
862. But
Strickland,
ling argument.
Notes
notes
mother
14.The dissent
that Belmontes’s
logged.
jury that
had a close
the
Belmontes
"told
Op.
relationship
Dis.
at 892.
with
sister.”
claim that
The dissent makes the untenable
only positive
observation was the
This trivial
was inno-
the witnesses’ belief that Belmontes
managed to extract from
attribute that Schick
jury.
mitigating
All
on the
cent had
effect
in the course of
defendant’s own mother
the
they be-
who
of the witnesses
testified
Likewise,
damaging testimony.
her otherwise
admitted,
their own
he was innocent
of
lieved
positive testimony
other
from
the rest of
prosecution,
prodding
of the
volition or at
cites,
Op. at
Dis.
dissent
witnesses
they
the facts of
were not familiar with
891-92,
cursory
was
and overshadowed
(The only exception
to this
the case.
unhelpful
mother,
repeated
insis-
significant
the witnesses’
but it is
Belmontes’s
innocent.
think her
tence that
surprising that a
would
or
mother
single positive,
not name a
productive
explain
significance
of
mitigating
sentence,
if
thing
given
he would do
a life
closing
evidence
statement at the
jury
rely
asked the
not to
on the few
penalty phase.
not,
end of the
He did
of
pieces mitigating
unconnected
earlier,
noted
any
even mention
of the
adduce,15
managed
somehow
Schick
evidence that might have humanized Bel-
spent majority
of his closing state- montes. He did not
any
refer to
telling
jury
ment
that the prosecutor
traumatic
helped
events that
shape Bel-
did not know whether he had murdered
personality
montes’s
responsible
and were
McConnell because “he wasn’t there” and for transforming him from a peaceful, like-
“he doesn’t know me.”
able child to the disturbed person who
presentation
lay
Schick’s
witness tes-
Steacy McConnell,
murdered
and did not
timony
penalty phase
at the
fulfill
failed to
attempt
explain
the connection between
its purpose
humanizing
the two. Nor of
explain
course did he
providing
any
reason to relevance of the evidence relating to Bel-
spare
Competent
his life.
counsel would
youth
childhood,
montes’s
including
witnesses,
lay
have met with the
discussed
illness,
his serious
jury’s
task of
testimony,
their
and elicited the relevant
determining whether Belmontes was de-
information from them on the stand.
serving of a life sentence rather than exe-
prepare
lay
Schick’s failure to
wit-
cution. Although Schick
stated
his de-
effectively present
nesses and
their testi-
position that
one
his four themes at the
mony constitutes deficient performance.
penalty phase was
capacity
Douglas,
See
notes witnesses who knew Belmontes that it opined self-esteem.” He became boy as a child described him as a “sweet” “difficult to mainstréam [for Belmontes] polite who was pleasing. And as socially racially himself into a mixed psychological expert, Dr. Missett noted largely Anglo situation at situation or “extremely that Belmontes was well social- testimony might have ex- school.” Such very well-developed ized” and had “a ca- plained why join Belmontes decided to in a pacity socially to function attractive gangs. prejudiced But Belmontes was not way by entering the time the he [wa]s by explanation, the lack of such since majority The adolescence.” cites these in keeping Schick succeeded out evidence positive features Belmontes as a child to gang altogether. relations support assumption its that external fac- tors, volition, and not can be blamed for majority The also contends that Schick Belmontes’s criminal transformation. should have introduced to show Belmontes’s difficult childhood and majority’s suggestion that Bel- emphasize family. the abuse montes’s rheumatic fever caused so However, already Belmontes’s mother had change personality dramatic a his is being by beaten testified by “pretty undermined mild” char- Dr. psychological expert, father. And as acterization illness Dr. significant it Missett found Belmontes Yates. And Belmontes’s own sister that he had never asserted witnessed un- stated that she “did not notice or now, father hit his mother. Even Bel- changes in him” derstand emotional due montes offers no evidence as to how the easy- to his illness—“He was the same him impacted abuse and never states going person way he related to he was abused himself. majority And while the con- [her].” Furthermore, several witnesses noted tends that Belmontes suffered from family having positive aspects single of Belmontes’s rela- to move into motel room, tionships. Belmontes’s sister recounted his sister recounted that Bel- stay how she and Belmontes went to their fa- montes “did not motel [] Sundays “spent very majority’s suggestion ther’s on the whole much.” The day days together.” She remembered would have considered positively, they culpable but noted that “never did Belmontes less for McConnell’s murder, any money.” they much he never had known further details because childhood, simply implausi- asked the financial prob- When whether about family psy- lems of the caused Belmontes ble.